Medicare and Medicaid Programs; Minimum Staffing Standards for Long-Term Care Facilities and Medicaid Institutional Payment Transparency Reporting, 40876-41000 [2024-08273]
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Federal Register / Vol. 89, No. 92 / Friday, May 10, 2024 / Rules and Regulations
Anne Blackfield, (410) 786–8518, for
information related to Medicaid
institutional payment transparency
reporting.
SUPPLEMENTARY INFORMATION: To assist
readers in referencing sections
contained in this document, we are
providing the following Table of
Contents.
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
Centers for Medicare & Medicaid
Services
42 CFR Parts 438, 442, and 483
[CMS–3442–F]
RIN 0938–AV25
Medicare and Medicaid Programs;
Minimum Staffing Standards for LongTerm Care Facilities and Medicaid
Institutional Payment Transparency
Reporting
Centers for Medicare &
Medicaid Services (CMS), Department
of Health and Human Services (HHS).
ACTION: Final rule.
AGENCY:
This final rule establishes
minimum staffing standards for longterm care facilities, as part of the BidenHarris Administration’s nursing home
reform initiative to ensure safe and
quality care in long-term care facilities.
In addition, this rule requires States to
report the percent of Medicaid
payments for certain Medicaid-covered
institutional services that are spent on
compensation for direct care workers
and support staff.
DATES:
Effective date: These regulations are
effective on June 21, 2024.
Implementation date: Except as set
forth in this section, these regulations
must be implemented upon the effective
date.
• The regulations at § 483.71 must be
implemented by August 8, 2024, for all
facilities.
• The regulations at § 483.35(b)(1)
and (c)(1) must be implemented by May
11, 2026, for non-rural facilities and
May 10, 2027, for rural facilities as
defined by the Office of Management
and Budget.
• The regulations at § 483.35(b)(1)(i)
and (ii) must be implemented by May
10, 2027, for non-rural facilities and
May 10, 2029, for rural facilities as
defined by the Office of Management
and Budget.
• The regulations at §§ 438.72(a) and
442.43 must be implemented by all
States and territories with Medicaidcertified nursing facilities and
intermediate care facilities for
individuals with intellectual disabilities
beginning May 10, 2028.
FOR FURTHER INFORMATION CONTACT: The
Clinical Standard Group’s Long Term
Care Team at
HealthandSafetyInquiries@cms.hhs.gov
for information related to the minimum
staffing standards.
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SUMMARY:
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Table of Contents
I. Executive Summary
A. Purpose
B. Summary of Provisions
C. Summary of Cost and Benefits
II. Minimum Staffing Standards for LongTerm Care Facilities in Response to the
Presidential Initiative
A. Background
B. Provisions of the Proposed Regulations
and Analysis of and Response to Public
Comments
1. General Comments
2. Definitions
3. Minimum Staffing Standards
4. Registered Nurse 24 Hours per Day, 7
Days a Week
5. Hardship Exemption
6. Facility Assessment
7. Implementation Timeframe
8. Severability Clause
C. Consultation With State Agencies and
Other Organizations
III. Medicaid Institutional Payment
Transparency Reporting Provision
IV. Provisions of the Final Regulations
V. Collection of Information Requirements
VI. Response to Comments
VII. Regulatory Impact Analysis
I. Executive Summary
A. Purpose
This final rule establishes minimum
staffing standards to address ongoing
safety and quality concerns for the 1.2
million 1 residents receiving services in
Medicare and Medicaid certified LongTerm Care (LTC) facilities each day. As
we have heard from residents, staff, and
advocates across the country in
response to the proposed rule, ensuring
adequate staffing levels is essential to
the safety and quality of long-term care
facilities. On February 28, 2022,
President Biden announced that CMS
would establish minimum staffing
standards that nursing homes must
meet, based in part on evidence from a
new research study that would focus on
the level and type of staffing needed to
ensure safe and quality care.2 This
announcement was part of an overall
reform plan to improve the quality and
safety of nursing homes. In addition, on
1 https://data.cms.gov/provider-data/dataset/
4pq5-n9py.
2 https://www.whitehouse.gov/briefing-room/
statements-releases/2022/02/28/fact-sheetprotecting-seniors-and-people-with-disabilities-byimproving-safety-and-quality-of-care-in-the-nationsnursing-homes/.
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April 18, 2023, President Biden issued
Executive Order 14095, ‘‘Increasing
Access to High-Quality Care and
Supporting Caregivers,’’ 3 which directs
the Secretary of HHS to consider actions
to reduce nursing staff turnover, which
is associated with negative impacts on
safety and quality of care.4 5 On
September 6, 2023, we published the
‘‘Medicare and Medicaid programs;
Minimum Staffing Standards for LongTerm Care Facilities and Medicaid
Institutional Payment Transparency
Reporting’’ 6 proposed rule (referred to
as the ‘‘proposed rule’’).
The safety and quality concerns
identified by the President stem, at least
in part, from chronic understaffing in
LTC facilities, and are particularly
associated with insufficient numbers of
registered nurses (RNs) and nurse aides
(NAs), as evidenced from, among other
things, a review of data collected since
2016 and lessons learned during the
COVID–19 Public Health Emergency
(PHE). Numerous studies, including a
new research study commissioned by
CMS as well as existing literature, have
shown that staffing levels are closely
correlated with the quality of care that
LTC facility residents receive as well as
with improved health outcomes. Higher
staffing levels also provide staff in LTC
facilities the support they need to safely
care for residents. Minimum staffing
standards can thus help prevent staff
burnout, thereby reducing staff
turnover, which can lead to more
consistent care and improved safety and
quality for residents and staff. This final
rule also promotes public transparency
related to the percent of Medicaid
payments for certain institutional
services that are spent on compensation
to direct care workers and support staff.
B. Summary of Provisions
We are updating the Federal
‘‘Requirements for Medicare and
Medicaid Long Term Care Facilities’’
minimum staffing standards (‘‘LTC
requirements’’). We will survey facilities
for compliance with the updated LTC
requirements in the rule and enforce
them as part of CMS’s existing survey,
certification, and enforcement process
for LTC facilities. In addition, consistent
with the President’s reform plan, we
will display our determinations of
3 E.O.
14095, 88 FR 24669 (Apr. 21, 2023).
Q, Williams, CS, Shulman, ET, White,
AJ. Association between staff turnover and nursing
home quality—evidence from payroll-based journal
data. J Am Geriatr Soc. 2022; 70(9): 2508–2516.
doi:10.1111/jgs.17843.
5 Castle, Nicholas G, and John Engberg. ‘‘Staff
turnover and quality of care in nursing homes.’’
Medical care vol. 43,6 (2005): 616–26. doi:10.1097/
01.mlr.0000163661.67170.b9.
6 88 FR 61352 through 61429.
4 Zheng,
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Federal Register / Vol. 89, No. 92 / Friday, May 10, 2024 / Rules and Regulations
facility compliance with the minimum
staffing standards on Care Compare 7
and require facilities to post a public
notice within the facility if they are out
of compliance with the standards so it
is easily visible for staff and residents.
We are establishing Federal minimum
nurse staffing standards for a number of
reasons, including the growing body of
evidence demonstrating the importance
of staffing to resident health and safety,
continued insufficient staffing, noncompliance by a subset of facilities, the
need to create a consistent floor to
reduce variability in the minimum floor
for nurse-to-resident ratios across States,
the need to support nursing home staff,
and, most importantly, to reduce the
risk of residents receiving unsafe and
low-quality care.
The regulatory updates are based on
evidence we collected using a
multifaceted approach, informed by
multiple sources of information,
including the 2022 Nursing Home
Staffing Study; more than 3,000 public
comment submissions from the Fiscal
Year 2023 Skilled Nursing Facility
Prospective Payment System proposed
rule (FY2023 SNF PPS) request for
information (RFI); academic and other
literature; Payroll Based Journal (PBJ)
System data; detailed listening sessions
with residents and their families,
workers, health care providers, and
advocacy groups; and analyzing the
46,520 comments received on the
proposed rule.
Specifically, in the final rule, we are
revising § 483.35(b) to require an RN to
be on site 24 hours per day and 7 days
per week (24/7 RN) to provide skilled
nursing care to all residents in
accordance with resident care plans,
with an exemption from 8 hours per day
of the onsite RN requirement under
certain circumstances. Requirements for
this exemption are consistent with the
requirements for other waivers and
exemptions set forth in the LTC
requirements. We are also adopting total
nurse staffing and individual minimum
nurse staffing standards, based on casemix adjusted data for RNs and NAs, to
supplement the existing ‘‘Nursing
Services’’ requirements at 42 CFR
483.35(a)(1)(i) and (ii). We are
specifying that facilities must provide,
at a minimum, 3.48 total nurse staffing
hours per resident day (HPRD) of
nursing care, with 0.55 RN HPRD and
2.45 NA HPRD. We are defining ‘‘hours
per resident day’’ as staffing hours per
resident per day which is the total
number of hours worked by each type
of staff divided by the total number of
7 https://www.medicare.gov/care-compare/
?redirect=true&providerType=NursingHome.
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residents as calculated by CMS. We note
that while the 3.48 total nurse staffing,
0.55 RN, and 2.45 NA HPRD standards
were developed using case-mix adjusted
data sources, the standards themselves
will be implemented and enforced
independent of a facility’s case-mix. In
other words, facilities must meet the
minimum 3.48 total nurse staffing, 0.55
RN, and 2.45 NA HPRD standards
regardless of the individual facility’s
resident case-mix, as they are the
minimum standard of staffing. If the
acuity needs of residents in a facility
require a higher level of care, as the
acuity needs in many facilities will, a
higher total, RN, and NA staffing level
will likely be required. As further
described below, the minimum staffing
standard is supported by literature
evidence, analysis of staffing data and
health outcomes, discussions with
residents, staff, and industry 8 and other
factors.
Each of the minimum staffing
requirements independently supports
resident health and safety and is
evaluated separately. Therefore,
compliance with the 24/7 RN
requirement does not simultaneously
constitute compliance with the
minimum 3.48 HPRD total nurse staffing
standard, the 0.55 RN HPRD, or the 2.45
NA HPRD requirements or vice versa.
Similarly, but separately, a minimum
number of total nurse staffing including
RN and NA hours per resident per day
improves overall quality of care. Both
independently and collaboratively,
these requirements and the totality of
the LTC requirements for participation,
will support compliance with statutory
mandates to provide services to attain or
maintain the highest practicable
physical, mental, and psychosocial
well-being of each resident, in
accordance with a written plan of care.
The resulting, evidence-based final
rule appropriately prioritizes quality
and safety of care gains from
establishing minimum standards for
nurse staffing, including RNs and NAs,
with a particular emphasis on the direct
care delivered at the bedside, and
effective implementation of these new
requirements. These new required
minimum staffing requirements will
increase staffing in more than 79
percent of nursing facilities
nationwide,9 and the specific RN and
NA HPRD requirements exceed the
existing minimum staffing requirements
8 Abt
Associates. (2022). Nursing Home Staffing
Study Comprehensive report. Report prepared for
the Centers for Medicare & Medicaid Services.
https://edit.cms.gov/files/document/nursing-homestaffing-study-final-report-appendix-june-2023.pdf.
9 PBJ data from the October 2021 Nursing Home
Care Compare data set.
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in nearly all States.10 We remain
committed to continued examination of
staffing thresholds, including careful
work to review quality and safety data
resulting from initial implementation of
the final rule and robust public
engagement. Should subsequent data
indicate that additional increases to
staffing minimums are warranted and
feasible, we anticipate that we will
revisit the minimum staffing standards
to shift them toward the higher ranges
supported by the evidence, with
continued consideration of all relevant
factors.
We are also revising the existing
Facility Assessment requirements at
§ 483.70(e). We are redesignating the
provisions at § 483.70(e) to a standalone
section at § 483.71. We are further
modifying the requirements to ensure
that facilities have an efficient process
for consistently assessing and
documenting the necessary resources
and staff that the facility requires to
provide ongoing care for its population
that is based on the specific needs of its
residents.
As we indicated in the proposed rule,
we are finalizing a staggered
implementation of these requirements
over a period of up to 5 years for rural
facilities and 3 years for non-rural
facilities to allow all facilities the time
needed to prepare and comply with the
new requirements.
Exemption from the minimum
standards of 0.55 HPRD for RNs, 2.45
HPRD for NAs and 3.48 HPRD for total
nurse staffing, and the 8-hours per day
of the 24/7 RN onsite requirement
would be available only in limited
circumstances. In order to qualify for an
exemption, a facility must meet the
following criteria: (1) the workforce is
unavailable as measured by having a
nursing workforce per labor category
that is a minimum of 20 percent below
the national average for the applicable
nurse staffing type, as calculated by
CMS, by using the Bureau of Labor
Statistics and Census Bureau data; 11 (2)
the facility is making a good faith effort
to hire and retain staff; (3) the facility
provides documentation of its financial
commitment to staffing; (4) the facility
posts a notice of its exemption status in
a prominent and publicly viewable
location in each resident facility; and (5)
the facility provides individual notice of
its exemption status and the degree to
10 Based on information in the staffing study
report appendix E2 all States with the exception of
2 have a total staffing HPRD greater than 3.48 or for
RN greater than .55HPRD (source: PBJ data Average
2022 Q1 nursing staffing levels by State).
11 For example, Hospital Review at https://
www.beckershospitalreview.com/workforce/nursesper-capita-ranked-by-state.html.
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which it is not in compliance with the
HPRD requirements to each current and
prospective resident and sends a copy of
the notice to a representative of the
Office of the State Long-Term Care
Ombudsman. If the exemption is
granted, CMS will post on Care
Compare a notice of its exemption status
and the degree to which it is not in
compliance with the requirements.
A facility will be excluded from being
eligible to receive an exemption if it: (1)
has failed to submit PBJ data in
accordance with re-designated
§ 483.70(p); (2) is a Special Focus
Facility (SFF); (3) has been cited for
widespread insufficient staffing with
resultant resident actual harm or a
pattern of insufficient staffing with
resultant resident actual harm, as
determined by CMS; or (4) has been
cited at the ‘‘immediate jeopardy’’ level
of severity with respect to insufficient
staffing within the 12 months preceding
the survey during which the facility’s
non-compliance is identified. We note
that the existing statutory waiver for all
RN hours over 40 hours per week will
still be available as required by sections
1819(b)(4)(C)(ii) and 1919(b)(4)(C)(ii) of
the Act, as this rule does not purport to
eliminate or modify the existing
statutory waiver.
As with other LTC requirements for
participation, enforcement actions, also
called remedies, may be taken against
facilities that are not in substantial
compliance with these Federal
participation requirements under 42
CFR part 488, subpart F. The remedies
that may be imposed include, but are
not limited to, the termination of the
provider agreement, denial of payment
for new admissions, and/or civil money
penalties.
We also proposed, and are finalizing,
new regulations at 42 CFR 442.43 (with
a cross-reference at 42 CFR 438.72) to
require that State Medicaid agencies
report on the percent of payments for
Medicaid-covered services in nursing
facilities and intermediate care facilities
for individuals with intellectual
disabilities (ICFs/IID) that are spent on
compensation for direct care workers
and support staff. This requirement is
designed to inform efforts to address the
link between sufficient payments being
received by the institutional direct care
and support staff workforce and access
to and, ultimately, the quality of
services received by Medicaid
beneficiaries. In addition, the
requirements being finalized in this
final rule are consistent with efforts to
address the sufficiency of payments for
home and community-based services
(HCBS) to direct care workers and
access to and the quality of services
received by beneficiaries of HCBS
finalized in the Ensuring Access to
Medicaid Services final rule published
elsewhere in this Federal Register. As
finalized, States will have to comply
with these requirements beginning 4
years from the effective date of this final
rule.
C. Summary of Cost and Benefits
Table 1: Cost and Benefits
Provision Description
Comprehensive Staffing
Requirement for L TC Facilities
The burden will be shared among States, the Federal Government, and
Medicaid-certified nursing facilities and ICFs/11D as follows:
• States: $540,000 one-time costs, $200,000 ongoing annual costs
• Federal Government: $540,000 one-time costs, $200,000 ongoing
annual costs
• Nursing facilities and ICFs/IID: $36.6 million one-time costs, $17.9
million annual ongoing costs.
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Medicaid Institutional Payment
Transparency Reporting
Total Transfers/Costs
Without accounting for any exemptions, we estimate that the overall
economic impact for the proposed minimum staffmg requirements for
LTC facilities (that is, collection of information costs and compliance
with the 24/7 RN, facility assessment, and minimum 3.48 total nurse
staffmg, 0.55 RN, and 2.45 NA HPRD requirements), which includes
staggered implementation of the requirements, would result in an
estimated cost of approximately $53 million in year 1; $1.43 billion in
year 2; $4.4 billion in year 3; with costs increasing to $5.8 billion by year
10. We estimate the total cost over 10 years will be $43 billion, which
was derived from FY 2021 Worksheet S-3, Part Vofthe Medicare Cost
Report. L TC facilities are responsible for these costs. Quantified benefits
include but are not limited to, increased community discharges, reduced
hospitalizations, and emergency department visits, with a minimum
estimated savings of gross costs of $318 million per year for Medicare
starting in year 3. Various categories of other important but hard to
quantify benefits include reduced staff burnout and turnover, increased
safety and quality of care for L TC residents as well. Lack of
quantification is also noteworthv as regards kev categories of costs.
The overall total economic impact for the reporting requirements is a
one-time cost of$37.6 million and ongoing annual costs of$18.3 million
per year. We estimate a 10-year cost of $147 .9 million.
Federal Register / Vol. 89, No. 92 / Friday, May 10, 2024 / Rules and Regulations
II. Minimum Staffing Standards for
Long-Term Care Facilities
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A. Background
1. Statutory Authority and Regulatory
Requirements for Direct Care Nurse
Staffing in Long-Term-Care (LTC)
Facilities
Sections 1819 and 1919 of the Social
Security Act (the Act) set out regulatory
requirements for Medicare and
Medicaid long-term care facilities,
respectively. Specific statutory language
at sections 1819(d)(4)(B) and
1919(d)(4)(B) of the Act permits the
Secretary of the Department of Health
and Human Services (the Secretary) to
establish any additional requirements
relating to the health, safety, and wellbeing 12 of residents in skilled nursing
facilities (SNF) and nursing facilities
(NF), as the Secretary finds necessary.
This provision and other statutory
authorities set out in section 1819 and
1919 of the Act provide CMS with the
authority to issue a regulation revising
the existing requirements and to
mandate a staffing minimum for nursing
care.
Under sections 1866 and 1902 of the
Act, providers of services in Long Term
Care (LTC) facilities seeking to
participate in the Medicare or Medicaid
program, or both, must enter into an
agreement with the Secretary or the
State Medicaid agency, respectively. In
order to be certified to participate in
Medicare and Medicaid programs,
prospective and existing providers of
services must meet and continue to
meet all applicable Federal participation
requirements. These Federal
participation requirements are the basis
for survey activities in LTC facilities for
ensuring that residents’ minimum
health and safety requirements are met
and maintained, as well as for facilities
to receive payment and remain in the
Medicare or Medicaid program or both.
LTC facilities include SNFs for
Medicare and NFs for Medicaid. The
Federal participation requirements for
SNFs, NFs, or dually certified (SNF/NF)
facilities, are codified in the
implementing regulations at 42 CFR part
483, subpart B.
In addition to those provisions,
sections 1819(b)(1)(A) and 1919(b)(1)(A)
of the Act require that a SNF or NF must
care for its residents in such a manner
and in such an environment as will
promote maintenance or enhancement
12 Section 1819(d)(4)(B) of the Act contains the
word ‘‘well-being’’, which does not appear in
section 1919(d)(4)(B). We do not interpret the
presence of this word as requiring separate
regulatory treatment of Medicare and Medicaid long
term care facilities.
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of the safety and quality of life of each
resident. Section 1819(b)(4)(C)(i) of the
Act requires that a SNF must provide
24-hour licensed nursing services,
sufficient to meet the nursing needs of
its residents, and must use the services
of a registered professional nurse at least
8 consecutive hours a day. These
provisions are largely paralleled at
section 1919(b)(4)(C)(i) of the Act for
NFs. Sections 1819(f)(1) and 1919(f)(1)
of the Act require that the Secretary
assure that requirements that govern the
provision of care in skilled nursing
facilities under this title, and the
enforcement of such requirements, are
adequate to protect the health, safety,
welfare, and rights of residents and to
promote the effective and efficient use
of public moneys.
In addition, sections 1819(b)(2) and
1919(b)(2) of the Act require that a SNF
or NF provide services to attain or
maintain the highest practicable
physical, mental, and psychosocial
well-being of each resident, in
accordance with a written plan of care.
The plan of care must describe the
medical, nursing, and psychosocial
needs of the resident and how the needs
will be met. The plan of care is
developed with the resident or
resident’s family or legal representative,
and by a team which includes the
resident’s attending physician and an
RN with responsibility for the resident.
The plan of care should be periodically
reviewed and revised by the team after
required assessments. Sections
1819(b)(3) and 1919(b)(3) of the Act
require that a SNF or NF conduct a
comprehensive, accurate, standardized,
reproducible assessment of each
resident’s functional capacity.
Assessments are required to be
conducted or coordinated by a
registered nurse at specified
frequencies.13
The participation requirements for
LTC facilities (Federal requirements) are
set forth at §§ 483.1 through 483.95. In
general, the health and safety standards
for LTC facilities address facility
administration, resident rights, care
planning, quality assessment,
performance improvement, services
provided, emergency preparedness, as
well as staffing requirements. Federal
requirements state that LTC facilities
must use the services of a registered
nurse (RN) for at least 8 consecutive
hours a day, 7 days a week
(§ 483.35(b)(1)), and must provide the
services of ‘‘sufficient numbers’’ of
licensed nurses and other nursing
personnel, which includes but is not
13 https://www.ecfr.gov/current/title-42/chapterIV/subchapter-G/part-483#483.70.
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limited to nurse aides (NAs), 24 hours
a day to provide nursing care to all
residents in accordance with the
resident care plans (§ 483.35(a)(1)). The
LTC facility must also designate an RN
to serve as the director of nursing (DON)
on a full-time basis (§ 483.35(b)(2)).
While these Federal requirements do
specify a specific number of hours that
these licensed nurses and other nursing
personnel must be available, there is no
requirement that those hours be
specifically dedicated to direct resident
care. With respect to staffing
requirements specific to individual
residents, such as RN staffing levels per
resident, Federal regulations currently
require that facilities provide staff
sufficient to ‘‘assure resident safety and
attain or maintain the highest
practicable physical, mental, and
psychosocial well-being of each
resident’’.
2. The Need for a Minimum Nurse
Staffing Requirement in LTC Facilities
On October 4, 2016, we issued a final
rule titled ‘‘Medicare and Medicaid
Programs; Reform of Requirements for
Long-Term Care Facilities’’ (81 FR
68688). This final rule significantly
revised the list of requirements that LTC
facilities must meet to participate in the
Medicare and Medicaid programs. As
part of this 2016 final rule, we revised
the LTC requirements to include
competency requirements for
determining the sufficiency of nursing
staff, based on a facility assessment
requirement that LTC facilities must
conduct to determine what resources are
needed to competently care for their
residents during both day-to-day
operations and emergencies. Prior to
issuing this final rule, in August 2015
we mandated the requirement for LTC
facilities to submit direct care staffing
information based on payroll data to
CMS as part of the ‘‘Medicare Program;
Prospective Payment System and
Consolidated Billing for Skilled Nursing
Facilities for FY 2016, SNF Value-Based
Purchasing Program, SNF Quality
Reporting Program, and Staffing Data
Collection final rule’’ (80 FR 46390).14
In the 2015 Reform of Requirements for
Long-Term Care Facilities proposed
rule, we included a robust discussion
regarding the long-standing interest in
increasing the required hours of nurse
staffing per day and the various
literature surrounding the issue of
minimum nurse staffing standards in
LTC facilities (see 80 FR 42199). Since
14 Medicare Program; SNF PPS FY 2016 Final
Rule. https://www.federalregister.gov/documents/
2015/08/04/2015-18950/medicare-programprospective-payment-system-and-consolidatedbilling-for-skilled-nursing-facilities.
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issuing the 2016 final rule and
establishing a competency-based
approach to staffing in the list of LTC
requirements, we have collected several
years of mandated PBJ System data,
which was unavailable at the time, and
new evidence from the literature.
Additionally, as a part of the FY 2023
Skilled Nursing Facility Prospective
Payment System Proposed Rule Request
for Information (FY 2023 SNF PPS RFI)
commenters provided examples of
ongoing quality and safety concerns
within LTC facilities.15 These included,
but were not limited to, residents going
entire shifts without receiving toileting
or multiple days without bathing
assistance, increases in falls, residents
not receiving basic feeding or changing
services, and even abuse in cases where
no one was watching. The 2022 Nursing
Home Staffing Study 16 corroborated
these comments and identified that
basic care tasks, such as bathing,
toileting, and mobility assistance, are
often delayed when LTC facilities are
understaffed, which is not sufficient to
meet the nursing needs of residents.
Interviews with various nurse staff
highlighted ongoing concerns that care
is often rushed, including for highacuity residents, which can often lead to
errors or safety issues. We refer readers
to the proposed rule for a detailed
discussion of the concerns highlighted
in interviews as part of the 2022 Staffing
Study (88 FR 61359).17
The academic literature also suggests
the importance of adequate staffing in
LTC facilities. In a 2021 study, where
interview data were examined, and
multivariate analyses of resident
outcomes were conducted, the authors
concluded that higher total nurse
staffing had a significant correlation
with a decreased number of pressure
ulcers, an increase in influenza
vaccination, an increase in pneumonia
vaccination, and a decreased number of
outpatient emergency department
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15 Medicare
Program; Prospective Payment
System and Consolidated Billing for Skilled
Nursing Facilities; Updates to the Quality Reporting
Program and Value-Based Purchasing Program for
Federal Fiscal Year 2023; Request for Information
on Revising the Requirements for Long-Term Care
Facilities To Establish Mandatory Minimum
Staffing Levels. 87 FR 22720, April 15, 2022
(https://www.federalregister.gov/documents/2022/
04/15/2022-07906/medicare-program-prospectivepayment-system-and-consolidated-billing-forskilled-nursing-facilities).
16 Abt Associates. (2022). Nursing Home Staffing
Study Comprehensive report. Report prepared for
the Centers for Medicare & Medicaid Services.
https://edit.cms.gov/files/document/nursing-homestaffing-study-final-report-appendix-june-2023.pdf.
17 https://www.federalregister.gov/documents/
2023/09/06/2023-18781/medicare-and-medicaidprograms-minimum-staffing-standards-for-longterm-care-facilities-and-medicaid.
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visits.18 Some studies have
demonstrated that increased staffing
levels were specifically beneficial to
vulnerable subpopulations in nursing
homes, such as residents with dementia
or Alzheimer’s disease. One cross
sectional study of long-stay residents
with Alzheimer’s disease and related
dementias found that residents in
nursing homes that had higher licensed
nurse staffing levels had better end-oflife care and were less likely to
experience potentially avoidable
hospitalizations.19
The COVID–19 Public Health
Emergency (PHE) further highlighted
and exacerbated long-standing concerns
about inadequate staffing in LTC
facilities. The COVID–19 PHE also
yielded evidence that appropriate
staffing made a difference as a part of
the overall response in LTC facilities.
One study looking at 4,254 LTC
facilities across eight States found that
there were fewer COVID–19 cases in
LTC facilities with four or more stars for
nurse staffing in the Five Star Quality
Rating System than in counterpart
facilities with a rating of one to three
stars for staffing.20 These findings
suggest that LTC facilities with low
nurse staffing levels may have been
more susceptible to the spread of the
COVID–19 infection. Findings from a
2020 study involving all 215 nursing
homes in Connecticut revealed that a
20-minute increase in RN time spent
providing direct care to residents was
associated with 22 percent fewer
confirmed cases of COVID–19 and 26
percent fewer COVID–19 related
deaths.21 These findings suggest that
there is a positive relationship between
the hours of direct care that RNs provide
and infection transmission in LTC
facilities.
Workforce challenges have also
contributed to understaffing, nurse
burnout, and position turnover.22 While
18 Wagner, L.M., Katz, P., Karuza, J., Kwong, C.,
Sharp, L., & Spetz, J. (2021). Medical staffing
organization and quality of care outcomes in postacute care settings. Gerontologist, 61(4),605–614.
19 Jessica Orth, Yue Li, Adam Simning, Sheryl
Zimmerman, Helena Temkin-Greener, End-of-Life
Care among Nursing Home Residents with
Dementia Varies by Nursing Home and Market
Characteristics Journal of the American Medical
Directors Association, Volume 22, Issue 2, 2021,
Pages 320–328.e4,ISSN 1525–8610, https://doi.org/
10.1016/j.jamda.2020.06.021.
20 Figueroa JF, Wadhera RK, Papanicolas I, et al.
Association of Nursing Home Ratings on Health
Inspections, Quality of Care, and Nurse Staffing
With COVID–19 Cases. JAMA. 2020;324(11):1103–
1105. doi:10.1001/jama.2020.14709.
21 https://agsjournals.onlinelibrary.wiley.com/
doi/epdf/10.1111/jgs.16689.
22 Kelly LA, Gee PM, Butler RJ. Impact of nurse
burnout on organizational and position turnover.
Nurs Outlook. 2021 Jan-Feb;69(1):96–102. doi:
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workforce challenges have existed for
years and have many contributing
factors, interested parties have reported
that the COVID–19 PHE exacerbated the
problem as many long-term care
facilities experienced high worker
turnover. Although the COVID–19 PHE
has officially ended, the long-term care
nursing workforce has been slower to
recover than the nursing workforce in
other healthcare settings for a variety of
reasons including the difficulty of the
work and comparatively lower pay,
although it has steadily increased over
the past year and a half.23 24 There is
also evidence that facilities have
additional funding that they could be
devoting to staffing. For example, one
paper found that nursing homes in
Illinois were much more profitable than
claimed but that 63 percent of those
profits were hidden and directed to
related parties of the owner. If those
hidden profits were instead put toward
staffing, the study found, RN staffing
could be substantially increased and the
share of facilities in compliance with
the registered nurse requirements of the
proposed rule would rise by twenty
percentage points from 55.2 percent to
75.6 percent and compliance with the
nurse aide HRPD requirement would
rise from 15.3 percent to 36.1 percent in
Illinois.25
The studies discussed in this section,
corroborated by public comment
submissions, input provided through
listening sessions, and the 2022 Nursing
Home Staffing Study, demonstrate the
consequences of understaffing on
resident health and safety. Yet, ongoing
insufficient staffing as well as the
widespread variability in existing
minimum staffing standards across the
United States (for example, 38 States
and the District of Columbia have
minimum nursing staffing standards;
however, there are significant variations
in their requirements) highlight the
need for national minimum staffing
standards for direct care in LTC
facilities.
10.1016/j.outlook.2020.06.008. Epub 2020 Oct 4.
PMID: 33023759; PMCID: PMC7532952.
23 Refer, for example, to a report from the Kaiser
Family Foundation indicating that as of March 20,
2022, 28 percent of nursing facilities reported a
staffing shortage, as reported in Ochieng, N.,
Chidambaram, P., Musumeci, M. Nursing Facility
Staffing Shortages During the COVID–19 Pandemic.
Apr 04, 2022. Kaiser Family Foundation. Accessed
at https://www.kff.org/coronavirus-covid-19/issuebrief/nursing-facility-staffing-shortages-during-thecovid-19-pandemic.
24 https://data.bls.gov/timeseries/CES6562300001
?amp%253bdata_tool=XGtable&output_view=data
&include_graphs=true.
25 Ashvin Gandhi and Andrew Olenski,
Tunneling and Hidden Profits in Health Care, NBER
Working Paper (March 2024), Tunneling and
Hidden Profits in Health Care (nber.org).
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Chronic understaffing nonetheless
continues in LTC facilities, and
evidence demonstrates the benefits of
increased nurse staffing in these
facilities. For example, a report by the
HHS Office of the Inspector General
(OIG) highlighted that in 2018, roughly
7 percent of nursing homes failed to
provide 8 hours per day of RN staffing
on at least 30 total days during the
year.26 The literature also suggests that
staffing levels within facilities across
the United States vary considerably,
with less-staffed facilities more likely to
be for-profit, larger, rural, and have a
higher share of Medicaid residents. In
particular, there has been evidence of
new for-profit owners reducing levels of
registered nurse staffing in order to
reduce costs.27
Finally, multiple studies have shown
that nursing home quality is generally
lower in LTC facilities that serve high
proportions of minority residents.28 29 30
Facilities that have a higher proportion
of minority residents tend to have
limited clinical and financial resources,
low nurse staffing levels, and a high
number of care deficiency citations.31 32
Furthermore, disparities in safety and
quality of care exist between LTC
facilities with a high number of
Medicaid residents and LTC facilities
that have a high number of Medicare
residents, with facilities with a high
number of Medicaid residents tending
to have worse outcomes.33 These
disparities can contribute to differences
in quality across facilities’ sites.34 As
such, we believe that national minimum
staffing standards in LTC facilities and
the adoption of a 24/7 RN and enhanced
facility assessment requirements, will
help to advance equitable, safe, and
quality care sufficient to meet the
nursing needs for all residents and
greater consistency across facilities.
26 Office of Inspector General (OIG), Some
Nursing Homes’ Reported Staffing Levels in 2018
Raise Concerns; Consumer Transparency Could Be
Increased, OEI–04–18–00450, August 2020. https://
oig.hhs.gov/oei/reports/oei-04-18-00450.asp.
27 https://www.nber.org/system/files/working_
papers/w28474/w28474.pdf.
28 https://www.ncbi.nlm.nih.gov/pmc/articles/
PMC3805666/.
29 https://www.ncbi.nlm.nih.gov/pmc/articles/
PMC4108174/.
30 https://onlinelibrary.wiley.com/doi/epdf/
10.1111/1475-6773.12079.
31 https://www.jamda.com/article/S15258610(21)00243-7/fulltext.
32 https://www.healthaffairs.org/doi/full/10.1377/
hlthaff.2015.0094.
33 Mor, Vincent et al. ‘‘Driven to tiers:
socioeconomic and racial disparities in the quality
of nursing home care.’’ The Milbank quarterly vol.
82,2 (2004): 227–56. doi:10.1111/j.0887–
378X.2004.00309.x.
34 https://www.healthaffairs.org/doi/full/10.1377/
hlthaff.2015.0094.
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3. CMS Actions and Key Considerations
To Inform Mandatory Minimum Staffing
Standards
In February 2022, President Biden
announced a comprehensive set of
reforms aimed at improving the safety
and quality of care within the Nation’s
nursing homes. One key initiative
within the Biden-Harris
Administration’s strategy was to
establish a minimum nursing home
staffing requirement for LTC facilities
participating in Medicare and
Medicaid.35 To help inform our efforts
in establishing consistent and broadly
applicable national minimum staffing
standards, we launched a multi-faceted
approach aimed at determining the
minimum level and type of staffing
needed to enable safe and quality care
in LTC facilities. This effort included
issuing the FY 2023 SNF PPS RFI,36
hosting listening sessions with various
interested parties, and conducting a
2022 Nursing Home Staffing Study,
which builds on existing evidence and
several research studies using multiple
data sources. In addition to launching
our multi-faceted approach, we
considered how any potential minimum
staffing standards would affect other
CMS programs and/or initiatives as well
as the enforceability of such standards.
We published the FY 2023 SNF PPS
RFI in April 2022, soliciting public
comments on minimum staffing
standards. In response to the FY 2023
SNF PPS RFI, we received over 3,000
comments from a variety of parties
interested in addressing LTC facilities’
issues including advocacy groups, longterm care ombudsmen, providers and
provider industry associations, labor
unions and organizations, nursing home
residents, staff and administrators,
industry experts, researchers, family
members, and caregivers of residents in
LTC facilities.
In the proposed rule we discussed the
2022 nursing home staffing study 37 that
35 https://www.whitehouse.gov/briefing-room/
statements-releases/2022/02/28/fact-sheetprotecting-seniors-and-people-with-disabilities-byimproving-safety-and-quality-of-care-in-the-nationsnursing-homes/.
36 Medicare Program; Prospective Payment
System and Consolidated Billing for Skilled
Nursing Facilities; Updates to the Quality Reporting
Program and Value-Based Purchasing Program for
Federal Fiscal Year 2023; Request for Information
on Revising the Requirements for Long-Term Care
Facilities To Establish Mandatory Minimum
Staffing Levels. https://www.federalregister.gov/
documents/2022/04/15/2022-07906/medicareprogram-prospective-payment-system-andconsolidated-billing-for-skilled-nursing-facilities.
37 Abt Associates. (2022). Nursing Home Staffing
Study Comprehensive report. Report prepared for
the Centers for Medicare & Medicaid Services.
https://edit.cms.gov/files/document/nursing-homestaffing-study-final-report-appendix-june-2023.pdf.
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40881
CMS commissioned (see 88 FR 61359–
61364). In brief, the key takeaways were:
• There is no clear, consistent, and
universal methodology for setting
specific minimum staffing standards, as
evidenced by the varying current
standards across the 38 States and the
District of Columbia that have adopted
their own staffing standards.
• The relationship between staffing
and quality of care and safety, varies by
staff type and level as follows:
++ Total Nurse Staffing hours per
resident day of 3.30 or more have a
strong association with safety and
quality care.
++ RN hours per resident day of 0.45
or more have a strong association with
safety and quality care.
++ NA hours per resident day of 2.45
or more also have a strong association
with safety and quality care.
++ LPN/LVN hours per resident day,
at any level, do not appear to have any
consistent association with safety and
quality of care.
However, we recognize that LPN/LVN
professionals undoubtedly provide
important services to LTC facility
residents despite the findings that LPN/
LVN staffing levels do not appear to
have a consistent association with safety
and quality of care, unlike RN and NA
staffing levels.
• Increasing nursing staffing levels
are associated with benefits including
enhanced safety and quality, as well as
costs, namely financial costs to LTC
facilities.
In addition to commissioning the
2022 Nursing Home Staffing Study and
issuing the FY 2023 SNF PPS RFI, CMS
also held two listening sessions on June
27, 2022, and August 29, 2022, to
provide information on the study and
solicit additional input on the study
design and approach for establishing
minimum staffing standards. We
described the general content of these
listening sessions in the 2023 proposed
rule (see 88 FR 61352).
4. Ongoing CMS Initiatives and
Programs Impacting LTC Facilities
In establishing the proposed and final
minimum staffing standards, we also
considered ongoing CMS policies,
programs, and operations, including the
SNF Prospective Payment System (SNF
PPS), the SNF Value-based Purchasing
Program (SNF VBP), oversight and
enforcement, and CMS policies
intended to enhance access to Medicaid
home and community-based services
and promote community-based
placements.
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a. Medicare Skilled Nursing Facility
Prospective Payment System
The Medicare SNF PPS is a
comprehensive per diem rate under
Medicare for all costs for providing
covered Part A SNF services (that is,
routine, ancillary, and capital-related
costs) that is statutorily required to be
updated annually. The FY 2025 SNF
PPS proposed rule published on April 3,
2024, and proposed to update the
Medicare payment policies and rates for
SNFs for FY 2025. For the proposed FY
2025 update, CMS estimated that the
aggregate impact of the payment
policies in the proposed rule would
result in a net increase of 4.1 percent,
or approximately $1.3 billion, in
Medicare Part A payments to SNFs in
FY 2025, if finalized. We note that
section 1888(e)(4)(E) of the Act requires
the SNF PPS payment rates to be
updated annually. These updates take
into account a number of factors,
including but not limited to, wages,
salaries, and other labor-related prices.
Specifics regarding the process to
update SNF PPS payment rates are
discussed in the rule.38
b. Skilled Nursing Facility (SNF) ValueBased Payment (VBP) Program Staffing
Measure
In the FY 2023 SNF PPS final rule, we
adopted a new Total Nurse Staffing
quality measure under the SNF VBP
Program, which is used to provide an
incentive to LTC facilities to improve
quality of care provided to residents.39
Performance on the Total Nurse Staffing
measure in FY 2024 will be used to
make payment adjustments in FY 2026.
This is a structural measure that uses
auditable electronic data reported to
CMS’ PBJ system to calculate HPRD for
total nurse staffing. Our minimum
staffing standards are not duplicative of
this existing measure; rather, they are
complementary by establishing a
consistent and broadly applicable
national floor (baseline) at which
residents are at a significantly lower risk
of receiving unsafe and low-quality care.
At the same time, the Total Nurse
Staffing quality measure will drive
continued improvement in staffing
across LTC facilities.
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38 Medicare
Program; Prospective Payment
System and Consolidated Billing for Skilled
Nursing Facilities; Updates to the Quality Reporting
Program and Value-Based Purchasing Program for
Federal Fiscal Year 2025. https://www.cms.gov/
newsroom/fact-sheets/fy-25-skilled-nursing-facilityprospective-payment-system-proposed-rule-cms1802-p.
39 https://www.cms.gov/newsroom/fact-sheets/
fiscal-year-fy-2023-skilled-nursing-facilityprospective-payment-system-final-rule-cms-1765-f.
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c. Nursing Home Survey and
Enforcement
The LTC minimum staffing standards
in this regulation are part of the Federal
participation requirements for LTC
facilities which are the basis for survey
activities and for the minimum health
and safety requirements that must be
met and maintained to receive payment
and remain as a Medicare or Medicaid
provider. As such compliance with
these requirements will be assessed
through CMS’ existing survey,
certification, and enforcement processes
under 42 CFR part 488.40 Section
1864(a) of the Act authorizes the
Secretary to enter into agreements with
the State survey agencies to determine
whether SNFs meet the Federal
participation requirements for Medicare.
Section 1902(a)(33)(b) of the Act
provides for the State survey agencies to
perform the same survey tasks for NFs
in Medicaid. The results of these
surveys are used by CMS and the State
Medicaid Agency, respectively, as a
basis for a decision to enter into, deny,
or terminate a provider agreement with
the facility. They are also used to
determine whether one or more
enforcement remedies should be
imposed against LTC facilities that are
not in substantial compliance with these
Federal participation requirements.
Sections 1819(h) and 1919(h) of the Act,
as well as 42 CFR 488.404, 488.406, and
488.408, provide that CMS or the State
may impose one or more remedies in
addition to, or instead of, termination of
the provider agreement when the CMS
or the State finds that a facility is out
of substantial compliance with the
Federal participation requirements.
Specifically, enforcement remedies that
may be imposed include the following:
• Termination of the provider
agreement;
• Temporary management;
• Denial of payment for all Medicare
and/or Medicaid individuals by CMS to
a facility, for Medicare, or to a State, for
Medicaid;
• Denial of payment for all new
Medicare and/or Medicaid admissions;
• Civil money penalties;
• State monitoring;
• Transfer of residents;
• Transfer of residents with closure of
facility;
• Directed plan of correction;
• Directed in-service training; and
• Alternative or additional State
remedies approved by CMS.
In general, to select the appropriate
enforcement remedy(ies), the
40 https://www.cms.gov/medicare/providerenrollment-and-certification/surveycertification
enforcement/nursing-home-enforcement.
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seriousness, that is, scope and severity
levels, of the deficiencies is assessed.
The severity level reflects the impact of
the deficiency on resident health and
safety and the scope level reflects how
many residents were affected by the
deficiency. The survey agency
determines the scope and severity levels
for each deficiency cited at a survey.
As part of these survey and
enforcement activities, we currently
publish data for all Medicare and
Medicaid LTC facilities on the CMS
public-facing Care Compare website,
including the number of certified beds
and a facility’s overall Five Star quality
rating, including three individual star
ratings in the categories of inspections,
staffing, and quality measurement.41 In
addition, individual performance
quality measures are included on Care
Compare. With respect to nursing home
staffing, this includes the following
staffing data: total number of nurse staff
HPRD, RN HPRD, LPN/LVN HPRD, and
NA HPRD, as well as some additional
staffing measures, including weekend
hours. These published data are
collected through a variety of
mechanisms, including during CMS
surveys (health inspection data),
reporting through the PBJ System, and
resident assessment data reported by
LTC facilities to us.
Over the last several years, CMS has
taken a number of actions to strengthen
our oversight and enforcement of
compliance. For example, in 2022, CMS
began integrating PBJ data into the
survey process to help target surveyors’
investigations of a facility’s compliance;
in 2023, CMS announced it would
undertake new analyses of State
inspection findings to ensure cited
deficiencies receive the appropriate
consequence, particularly involving
resident harm.42 Additionally, we began
posting levels of weekend staffing and
rates of staff turnover, and using these
metrics in the Five Star Quality Rating
System to help provide more useful
information to consumers. Furthermore,
CMS revised the policies in the Special
Focus Facility (SFF) program to ensure
these facilities make sustainable
improvements to protect residents’
health and safety.43 In January 2023,
CMS began conducting audits of
41 Centers for Medicare & Medicaid Services
Medicare.gov. Find and Compare Nursing Homes
Providers near you https://www.medicare.gov/carecompare/?providerType=NursingHome&
redirect=true.
42 https://www.whitehouse.gov/briefing-room/
statements-releases/2023/09/01/fact-sheet-bidenharris-administration-takes-steps-to-crack-downon-nursing-homes-that-endanger-resident-safety/.
43 https://www.cms.gov/newsroom/press-releases/
biden-harris-administration-strengthens-oversightnations-poorest-performing-nursing-homes.
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facilities’ medical records to identify if
residents were inappropriately given a
diagnosis of schizophrenia, and
administered antipsychotics drugs,
which are very dangerous for residents.
Lastly, in November 2023, CMS released
a final rule that implemented portions
of section 6101 of the Affordable Care
Act, requiring the disclosure of certain
ownership, managerial, and other
information regarding LTC facilities.44
As noted previously in this section,
we have been moving towards more
data-driven enforcement, including use
of the PBJ System data to guide
monitoring, surveys and enforcement of
existing staffing requirements.
Additionally, starting in late 2023, CMS
expanded audits of these data. We
continue to recognize, however, the
value of assessing the sufficiency of a
facility’s staffing based on observations
of resident care conducted during the
onsite survey. For example, while
compliance with numeric minimum
staffing standards could be assessed
using PBJ System data, it is possible that
due to a facility’s layout, management,
and staff assignments, a facility could
meet the numeric staffing standards but
not provide the sufficient level of
staffing needed to protect residents’
health and safety. Resident health status
and acuity (for example, proportion of
residents with cognitive decline or use
of ventilators) are also factors in
determining adequate staffing.
Therefore, when assessing the
sufficiency of a facility’s staffing it is
important to note that any numeric
minimum staffing requirement is not a
target and facilities must assess the
needs of their resident population and
make comprehensive staffing decisions
based on those needs. Often, that will
require higher staffing than the
minimum requirements. The additional
requirements in this rule to bolster
facility assessments are intended to
address this need and guard against any
attempts by LTC facilities to treat the
minimum staffing standards included
here as a ceiling, rather than a floor
(baseline).
In summary, the benefits and success
of minimum staffing standards are
heavily dependent on our utilization of
the survey and enforcement process.
Therefore, in establishing numerical
minimum staffing standards our goal is
to ensure that they are both
implementable and enforceable, as
determined through both the PBJ
System as well as on-site surveys.
d. Medicaid Home and CommunityBased Services
We remain committed to a holistic
approach to meeting the long-term care
needs of Americans and their families.
This requires a focus on access to highquality care in the community while
also ensuring the health and safety of
those who receive care in LTC facilities.
In the Ensuring Access to Medicaid
Services final rule published elsewhere
in this Federal Register and Medicaid
and CHIP Managed Care Access,
Finance, and Quality final rule
published elsewhere in this Federal
Register, we finalized several policies
that will work alongside those included
in this rule. These finalized proposals
require that at least 80 percent of
Medicaid payments for personal care,
homemaker and home health aide
services be spent on compensation for
the direct care workforce (as opposed to
administrative overhead or profit);
establish standardized reporting
requirements related to health and
safety, beneficiary service plans and
assessments, access, and quality of care;
and promote transparency through
public reporting on quality,
performance, compliance as well as
certain Medicaid HCBS providers’
payment rates for direct care workers.
Additionally, we remain committed to
facilitating transfers from LTC facilities
to the community through the
continued implementation of the
‘‘Money Follows the Person’’ program.45
Notably, similar to the findings in the
2022 Nursing Home Staffing Study, we
believe that the minimum staffing
standards finalized in this rule will
improve quality of care which includes
facilitating the transition of care to
community-based care services and
potential Medicare savings.
44 https://www.cms.gov/newsroom/fact-sheets/
disclosures-ownership-and-additional-disclosableparties-information-skilled-nursing-facilities-and-0.
45 Money Follows the Person | Medicaid, https://
www.medicaid.gov/medicaid/long-term-servicessupports/money-follows-person/.
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B. Provisions of the Proposed
Regulations and Analysis and Response
to Public Comments
In response to the proposed rule, we
received 46,520 total comments.
Commenters included long term care
consumers, advocacy groups for longterm care consumers, organizations
representing providers of long-term care
and senior service, long-term care
ombudsmen, State survey agencies,
various health care associations, legal
organizations, labor unions, residents,
families, and many individual health
care professionals (such as nursing
organizations) and administrative staff.
Our goal is to protect resident health
and safety and ensure that facilities are
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40883
considering the unique characteristics of
their resident population in developing
staffing plans, while balancing
operational requirements and
supporting access to care. Moreover, the
comprehensive staffing standards will
provide staff with the support they need
to safely care for residents. Most
commenters supported the proposed
rule’s goals to ensure safe and quality
care in LTC facilities.
In this final rule, we provide a
summary of each proposed provision, a
summary of the public comments
received and our responses to them, and
an explanation for changes in the
policies that we are finalizing.
1. General Comments
Comment: Many commenters shared
their personal stories of care provided
and received in nursing homes. While a
majority of these commenters shared
observations of the compassion shown
by well-meaning staff, they also shared
observations of missed care and
avoidable harm that occurred due to
insufficient staffing. A resident stated:
• ‘‘I was in a nursing home for rehab
on discharge from hospital the day after
I broke my shoulder in a fall down a
staircase. When a fire alarm sounded I
was on the toilet. I heard the automatic
fire doors close. I stayed as calm as I
could, reminding myself someone
would come to get me off the toilet and
out to safety. Half an hour later activity
resumed nearby and a CNA did help me
off the toilet. She said ‘Oh I wasn’t
worried about you, I knew you’d get
yourself out through the window if you
needed to.’ ’’
Many family members and friends
shared personal stories, urging CMS to
adopt minimum staffing standards to
prevent future incidences like the ones
that their loved ones experienced.
Families and friends wrote:
• ‘‘She was a successful Real-estate
broker her whole adult life, who
suffered a tragic fall that left her with
multiple breaks in her leg and landed
her in a nursing home for rehab. What
she lost in the nursing home was far
greater than the break, she lost her
dignity and self-worth as she was forced
to lay in her own urine on a regular
basis and on several occasion her own
feces. The staff were caring and capable
but there was never enough of them.’’
• ‘‘The major concern was the stage 4
bed sores that Jerry developed after 6
weeks at BNR while Jerry was under
their care. Jerry was continually left
sitting in his own feces as he was both
urinary and bowel incontinent. He was
unable to get help or attention on
numerous occasions by pressing the call
button, to the point of purchasing a bull
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horn with a siren to summon help, of
course this didn’t improve matters.
Several times his roommate would be
unconscious and hanging out of his bed
a hairs breadth away from falling with
no belts or restraints, which I personally
witnessed and alerted an aide who
replied ‘he likes it that way’ ’’.
• ‘‘I had a loved one recently fall in
a Memory Care Facility. She was on the
floor for quite some time before she was
discovered. She had a broken hip and
no ability to become ambulatory. All she
had done was attempt to go to the
bathroom in the middle of the night. My
recommendation is that a patient should
not be left to get themself to the
bathroom alone in the night. Why can’t
they have enough staff on hand that
they can provide someone to help each
patient to the bathroom and safely
return to bed?’’
• ‘‘This past year my partner spent
several months in a nursing home/rehab
facility and I personally saw how
shorthanded they were. The lack of
adequate staff, number of part-time and
substitute staffing, poor pay, was
obvious. The nights were the worse
time. A patient could ring for help and
wait and wait an hour for a response.
They could ask for a glass of water and
wait hours for it to come. They could
lay in their own waste or urine-soaked
bedding for way too long, day or night.
Those who needed help being fed
would often just have the food delivered
and if a family member wasn’t there to
help them eat they would go hungry.’’
• ‘‘They were supposed to check in
on him every hour and to help him turn
from side to side at least every two
hours. Later, when he got better, they
were supposed to check on him every
four hours, but they didn’t. They were
supposed to change his clothing and
bedsheets regularly. They did none of
that often enough, so he developed
bedsores/open wounds as big as your
hand on his backside because of a lack
of care. How would you like your dad
to go through that experience in the last
24 months of his life, after all he’d been
through in 90 years?’’
• ‘‘In June 2021 while the day shift
nurse was making morning rounds she
found my family member aspirating on
vomit, having seizures, with a 106
degree temperature which turned in to
a case of sepsis. The nurse said she had
no idea how long my family member
was lying there in that condition as
there was only 1 nurse and 1 aide for
over 100 residents on the overnight
shift. Since that incident my family
member has lost the ability to speak
and/or respond to questions and or
commands. As a result I have personally
spent 10 to 12 hours a day, every day,
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with my family member at the LTC to
ensure they are getting the care they
need.’’
• ‘‘My loved one was basically
starved to death—all dementia patients
in that specific ward were, due to not
enough staff helping them eat. Two
people were on staff to help 20 patients,
so only the three catatonic people got
help. Other patients would be
distracted, which is natural, at meals,
but then weren’t encouraged to eat, due
to lack of sufficient staff. The patients
would therefore lose weight weekly and
be dizzy, malnourished weak, leading to
frequent falls and more and more
bedridden patients. These patients
would then get pneumonia and die.
There were never enough staff to clean
up spills and urine fast enough- I visited
frequently and witnessed fall after fall
constantly around me due to this
problem. There were never enough staff
to do ANYthing.’’
Likewise, many nursing home staff
wrote of their own experiences and
observations while trying to safely
deliver care to residents. Staff wrote:
• ‘‘Personal observations from my
nursing home consulting work as a
Registered Dietitian: Nurses so short
staffed they declare a ‘med holiday’ and
throw away all the meds for one shift
because they don’t have time to pass
them out. Nursing so understaffed that
bedtime snacks, though made and
delivered to the nursing station, are not
passed out. Resulting in one insulin
dependent diabetic resident’s blood
sugar zeroing out in the wee hours of
the night. Patient died.’’
• ‘‘Recently a resident got skin ulcers
after no one was able to see him for the
entire 8-hour shift, and who knows how
long before that? When you have 14 or
18 or 20 residents to care for, there’s
simply not enough time for everyone.
Feeding them all takes so much time,
several hours combined right there.
Thats how other basic needs fall by the
wayside. When you’re doing the job of
two CNAs, it really means that half of
your residents are going to have to go
without.’’
• ‘‘Last week, after two aides did not
show up for their shift, it led to several
residents missing their breakfast. Thats
just one example unfortunately,
residents regularly miss meals or have
to eat them late. The problem is that
whenever staff is needed for one urgent
task, were usually in the middle of
another urgent task that cannot be
interrupted.’’
• ‘‘Residents in our facility are
recovering from surgery or things like
strokes and they need a lot of help. With
how many residents I am caring for, I
don’t have time to give them the best
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care. I feel like I’m always rushing to the
next person, and they get upset, and this
is not good for their recovery. If they
have to go to the bathroom and can’t
wait, they try to go by themselves and
they end up falling.’’
Response: We thank commenters for
sharing their personal stories. The
compelling narratives shared by
commenters demonstrate the dangers of
inadequate staffing in nursing homes,
not as an impersonal set of numbers and
percentages, but as the lived
experiences of the more than 1 million
people receiving nursing home services
each year. As evidenced by the
thousands of personal stories told in the
comments, there is a persistent,
pervasive problem in the safety of
nursing home care across the country
that must be addressed. This final rule
includes policies that will advance
resident safety, and we are committed to
using all available CMS authorities to
continue protecting residents now and
in the future.
Comment: Comments on the proposed
rule varied in level of support and
opposition. Many commenters
expressed overall support for the
proposed revisions to the regulations
and concern about the health and safety
of nursing home residents. Numerous
commenters encouraged CMS to further
strengthen the requirements and not
finalize the version of the rule as
proposed. A large number of
commenters applauded CMS for taking
a first step toward improvements for
staff and residents in LTC facilities and
noted additional opportunities to
address workforce challenges. Many
NAs and family representatives
described the negative impact of low
staffing levels on meeting residents’
needs, writing of situations that ranged
from residents that needed assistance
with meals not getting that assistance
and losing weight, to accounts of
residents that had to stay in bed all
weekend because the facility was short
staffed. Many comments centered on
unnecessary falls that occur because no
one is around to assist residents to and
from the bathroom. For example, one
commenter who described themselves
as a family member of many residents
shared a personal description of their
experience with a nursing facility,
noting that their loved ones often share
that ‘‘they have been waiting for hours
just to go to the bathroom.’’ Commenters
noted that most LTC direct staff are
doing the best they can and that
increasing staff will decrease burnout,
make their jobs safer, and lessen the
potential for resident’s safety events
such as falls and pressure ulcers. For
example, one NA with over 22 years of
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experience highlighted that while they
love their jobs, it has been one the
hardest they ever held and having
‘‘Federal guidelines in place could help
the elderly and their families feel more
confident in the facilities.’’ This
commenter also indicated that having
Federal guidelines in place will provide
individuals ‘‘more of an incentive to
work in a long-term care facility.’’
In contrast, other commenters
expressed a desire to rescind the
proposed rule, citing overall concerns
about the financial burden and
workforce shortages, training
challenges, administrative burden, and
limited housing options in sparsely
populated areas for new staff.
Response: The large volume of
comments that we received
demonstrates the interest in resident
health and safety issues. Numerous
comments from residents, families, staff,
and ombudsmen make it clear that there
is a widespread lack of sufficient care by
nursing staff in our nation’s LTC
facilities. These comments provide
further evidence of and support for our
view that we will significantly improve
resident safety through the
establishment of minimum staffing
requirements. The changes that we
discuss in this final rule are intended to
promote resident health, safety, and
access to care.
We acknowledge the workforce
challenges in LTC facilities. According
to the Bureau of Labor Statistics (BLS),
in March 2020, there were 3,372,000
staff working in nursing homes and
other LTC facilities and an average of
1,319,318 residents per day in nursing
homes. Total staffing dropped to a low
of 2,961,200 for staff working in nursing
homes and other LTC facilities in
January 2022, a decrease of
approximately 410,000 staff from March
2020. The daily census of residents
averaged 1,152,842 per day in nursing
homes in January 2022. Workforce
challenges may have contributed to the
drop in staff, but it appears to have been
caused by multiple factors, such as the
drop in the number of nursing home
residents. The number of staff is
improving, as of November 2023 there
are 3,216,700 staff working in nursing
homes and other LTC facilities, still
155,300 less than March 2020. Facilities
averaged 1,201,585 residents per day in
November 2023. Please note, this data is
for all employees in these facilities, not
just healthcare staff.46 As stated in the
proposed rule, it is the policy of the
46 Bureau of Labor Statistics. https://data.bls.gov/
timeseries/CES6562300001?amp%253bdata_
tool=XGtable&output_view=data&include_
graphs=true. Accessed 02/28/24.
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Biden-Harris Administration to ensure
that the LTC workforce is supported,
valued, and well-paid.47
We note the efforts that many
commenters described regarding their
recruitment, hiring and training of
employees along with retention efforts
for existing employees. We support the
concept of implementing workforce
development programs, as they benefit
not only the employees but ultimately
the residents. CMS is launching a
comprehensive workforce development
initiative 48 and is also exploring the
potential to provide technical assistance
to LTC facilities through the existing
Quality Improvement Organizations.
While the requirements of this rule are
intended to improve resident safety and
care, they may also improve the working
environment in LTC facilities.
Establishing staffing minimums will
assure that NAs, for example, have
enough nursing staff present in the
facility for a safe 2-person resident
transfer using a mechanical lift,
reducing resident and staff injuries, as
well as staff burnout. The new
requirement that facilities must involve
their direct care workers and their
representatives in the facility
assessment allows the staff to provide
meaningful input regarding the facility’s
operations, which has the potential to
lead to a better working environment
that complements retention and hiring
efforts. In addition, having a 24/7 RN
presence can improve resident safety 49
with the added benefit of providing
more professional support to all facility
workers.
Comment: Some commenters stated
that the pool of former nursing home
workers who left the sector is more than
sufficient to cover the demand for new
workers, while numerous commenters
voiced questions about the availability
of workforce and whether this is the
right time to implement staffing
minimums. A few commenters denied
the existence of a staffing shortage. One
47 Executive Order on Increasing Access to High
Quality Care and Supporting Caregivers. White
House. Accessed at https://www.whitehouse.gov/
briefing-room/presidential-actions/2023/04/18/
executive-order-on-increasing-access-to-highquality-care-and-supporting-caregivers/. Published
on April 18, 2023. Accessed on March 19, 2023.
48 FACT SHEET: Biden-Harris Administration
Takes Steps to Crack Down on Nursing Homes that
Endanger Resident Safety | The White House:
https://www.whitehouse.gov/briefing-room/
statements-releases/2023/09/01/fact-sheet-bidenharris-administration-takes-steps-to-crack-downon-nursing-homes-that-endanger-resident-safety/.
49 National Academies of Sciences, Engineering,
and Medicine. 2022. The National Imperative to
Improve Nursing Home Quality: Honoring Our
Commitment to Residents, Families, and Staff.
Washington, DC: The National Academies Press.
https://doi.org/10.17226/26526.
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commenter stated it was a pay shortage
and that challenges with a lack of
qualified staff would be readily resolved
by higher pay and better working
conditions. Some commenters
explained that the LTC workforce has
not recovered from the impact of the
COVID PHE. Some commenters noted
that LTC facilities were already having
issues hiring sufficient staff due to the
lack of qualified, available staff in their
area. For example, one commenter
pointed out that in the State of Missouri,
less than 4 percent of RNs were looking
for work and that more than a quarter
of RNs were 54 or older, suggesting that
not only were there few RNs looking for
work but also a significant number
would likely be retiring in the next
several years.50 The commenter noted
that compliance with these minimum
staffing requirements would require
hundreds of new RNs. Some
commenters asked where these
additional RNs would come from to staff
LTC facilities. Some commenters shared
concern about shortages of RNs overall
and specifically the scarcity of RNs who
chose to work in LTC facilities. They
stated this needs to be recognized as an
impediment to some facilities being able
to meet staffing minimums. A
commenter expressed concerns that due
to the minimum staffing requirements,
providers will likely encounter
heightened levels of competition in each
labor market for RNs and NAs.
Moreover, the commenter stated that it
would be even more challenging to
recruit and retain staff for ‘‘smaller LTC
facilities and those located in rural areas
than larger, better-funded facilities in
nearby urban areas’’. Some
recommended that this minimum
staffing standards regulation be
suspended until there were enough RNs
to staff LTC facilities to comply with the
24/7 RN and 0.55 RN HPRD
requirements. Other commenters stated
that their facilities have been trying to
hire nursing staff without success and
that they rely on staffing agencies, a
process which offers its own set of
unique challenges for facilities.
Response: We acknowledge that there
are workforce challenges in various
areas of the country. CMS is committing
over $75 million to launch an initiative
to help increase the long-term care
workforce.51 We expect that these funds
50 Missouri State Board of Nursing. (2022). 2022
Missouri Nursing Workforce Report. Jefferson City,
MO: Missouri State Board of Nursing. https://
pr.mo.gov/boards/nursing/2022%20Missouri%20
Nursing%20Workforce%20Report.pdf.
51 FACT SHEET: Biden-Harris Administration
Takes Steps to Crack Down on Nursing Homes that
Endanger Resident Safety | The White House:
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will be allocated for such purposes as
for tuition reimbursement, we are also
exploring the potential to provide
additional technical assistance to LTC
facilities through the Quality
Improvement Organizations. The
Department of Labor and other parts of
the Biden-Harris Administration are
also investing in building a strong
nursing workforce and expanding the
pipeline of new staff. In response to
comments, and in addition to the $75
million workforce development
investment and potential technical
assistance, we have made some changes
to the proposed minimum staffing
standards requirements to provide
additional flexibility and time for
facilities to implement these changes
while maintaining safety and quality.
The final requirements have staggered
implementation dates over a period of
up to five years. A total nurse staffing
standard has been added and there are
exemptions from the minimum staffing
standards. We will continue to examine
resident safety issues and potential
changes going forward. The minimum
staffing standards will provide staff in
LTC facilities the support they need to
safely care for residents, and help
prevent staff burnout, thereby reducing
staff turnover, which can lead to
improved safety.
Comment: Numerous commenters
voiced support for the proposed
regulations but asked for funding,
indicating that the financial implication
of hiring staff to meet the standards was
a roadblock. Commenters stated that the
implementation of the minimum
nursing staffing requirement will bring
increased costs, and in the absence of
reimbursement for these costs, the LTC
facilities will have to absorb those
increased costs, causing financial strain.
One commenter recommended
increasing payment rates using wage
pass through rules. Some commenters
stated that nursing homes cannot
compete with hospitals for RN salaries.
Other commenters expressed concern
that unintended consequences of hiring
more staff would result in higher fees
for residents and their families. In
contrast, other commenters suggested
that nursing homes have the financial
means to provide quality staffing,
without additional funding. Some of
these commenters highlighted the
profits earned by nursing homes, which
make them a desirable investment
opportunity, as well as diversion of
https://www.whitehouse.gov/briefing-room/
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funds to related-party expenses or
excess administrative costs.52
Response: While funding, salaries
paid by other healthcare providers, and
fees that residents are charged are
outside the scope of this rulemaking, we
crafted the rule with careful
consideration that the majority of LTC
facilities will need to recruit, hire, and
train new staff. In the proposed rule we
noted that non-profit nursing homes
were three times more likely to already
be in compliance with the proposed
minimum staffing requirements
suggesting a relationship between profit
model and staffing.53 Through phasedin implementation facilities may not
have to hire all the necessary nursing
staff at one time. There are also waivers
and hardship exemptions available to
LTC facilities on a case-by-case basis.
Please see sections II B.4, ‘‘Registered
Nurse 24 hours per day 7 days per
week,’’ and II B.5, ‘‘Hardship Exemption
from Minimum Hours per Resident Day
and RN onsite 24 hours per day 7 days
per week,’’ of this rule for more details.
In addition, please see section VI,
‘‘Regulatory Impact Analysis,’’ for
estimates of expenditures related to this
final rule.
Comment: A commenter noted that
LTC facilities must meet State and
Federal requirements for health and
safety. Some commenters were
concerned about the burden of meeting
both their State requirements and
Federal requirements. A commenter
expressed concern about conflicts
between State and Federal staffing
requirements. The commenter suggested
rewards for facilities located in States
that have higher staffing standards and
reimbursement cuts for facilities located
in States that have reduced or
eliminated staffing standards compared
to Federal minimum staffing standards.
Response: Complying with State and
Federal requirements is not new to LTC
facilities. Generally, healthcare facilities
in the United States function under
State and Federal regulations. With
regard to the updates to the
requirements for Medicare and
Medicaid participation for LTC
facilities, the provisions in this final
rule are not intended to and would not
preempt the applicability of any State or
local law providing a higher standard.
In States where there is a higher HPRD
requirement for RNs or NAs, or an RN
coverage requirement in excess of at
52 Comments of the Long Term Care Community
Coalition at 10–11.
53 Abt Associates. (2022). Nursing Home Staffing
Study Comprehensive report. Report prepared for
the Centers for Medicare & Medicaid Services.
https://edit.cms.gov/files/document/nursing-homestaffing-study-final-report-appendix-june-2023.pdf.
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least one RN on site 24-hours per day,
7 days a week, or a total nurse staffing
minimum above 3.48 HPRD that is
required by this final rule, or any other
specific requirement such as for LPNs/
LVNs, the facility would be expected by
its State or local government to meet the
higher standard. To the extent Federal
standards exceed State and local law
minimum staffing standards, no Federal
pre-emption is implicated because
facilities complying with Federal law
would also be in compliance with State
or local law. Facilities in states that
have eliminated their staffing standards
are required to comply with Federal
law. We are not aware of any State or
local law providing for a maximum
staffing level. This final rule, however,
is intended to and would preempt the
applicability of any State or local law
providing for a maximum staffing level,
to the extent that such a State or local
maximum staffing level would prohibit
a Medicare, Medicaid, or dually
certified LTC facility from meeting the
minimum HPRD requirements and RN
coverage levels finalized in this rule or
from meeting higher staffing levels
required based on the facility
assessment provisions finalized in this
rule. Financial adjustments related to
State staffing requirements are outside
the scope of this rule.
Comment: Numerous commenters
described various issues involving
nursing education and the volume of
new nurse graduates. Some commenters
suggested investing in nursing school
infrastructure. Another commenter
recommended a policy that includes
educational opportunities for
individuals to enter nursing and other
health care fields, increasing the
number of nursing educators, and
subsidies for NA training programs. One
commenter asked that CMS offer
student loan forgiveness, or no-interest
student loans for those entering the
nursing profession. Some commenters
stated that the proposed $75 million
workforce campaign that will be
coordinated by CMS and was
announced in tandem with the
proposed rule, is not sufficient to train
the additional nursing staff that are
needed. Other commenters asked that
CMS work to ensure funding for training
and recruiting qualified staff that
includes home health and hospice
providers. Another commenter asked
CMS to work on recruitment and
retention of LTC facility nursing staff.
Other commenters expressed concern
that the $75 million workforce
campaign funds should not be used to
train surveyors who will eventually
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assess enforcement actions against
nursing homes.
Response: We agree that educating
and training new nursing staff is
important for the nursing home
workforce. On September 1, 2023, the
White House published a fact sheet
detailing various initiatives that
promote safety in LTC facilities.54 One
of the initiatives is focused on growing
the nursing workforce. CMS is
launching a new nursing home staffing
campaign to help workers pursue
careers in nursing homes. This
campaign will support the recruitment,
training, and retention of nursing home
workers, including the CMS investment
of over $75 million in financial
incentives for nurses to work in nursing
homes, through the Civil Money Penalty
(CMP) Reinvestment Program. Other
parts of the Federal Government are also
investing in the nursing workforce. The
Substance Abuse and Mental Health
Services Administration (SAMHSA)
provides training and technical
assistance to nursing facility staff
serving individuals with serious mental
illness and/or substance use disorders
through its Center of Excellence for
Building Capacity in Nursing Facilities
to Care for Residents with Behavioral
Health Conditions. The Department of
Labor also provided $80 million in
grants last year as part of its Nursing
Expansion Grant program to increase
clinical and vocational nursing
instructors and educators in the U.S.,
and train healthcare professionals,
including direct care workers. The
Health Resources and Services
Administration (HRSA) has also
administered other programs to increase
the number of nurse preceptors, an
example of a HRSA program that
supports the training of clinical nurse
preceptors is the Nurse Education,
Practice, Quality and Retention-Clinical
Faculty and Preceptor Academies
(NEPQR–CFPA) Program.55 Another
nurse education program administered
by HRSA is the FY 2023 Nurse
Education, Practice, Quality and
Retention (NEPQR)-Pathway to
Registered Nurse Program (PRNP)
Awards, this program creates a pathway
for LPNs and LVNs to become RNs.56
54 FACT SHEET: Biden-Harris Administration
Takes Steps to Crack Down on Nursing Homes that
Endanger Resident Safety | The White
House:_https://www.whitehouse.gov/briefing-room/
statements-releases/2023/09/01/fact-sheet-bidenharris-administration-takes-steps-to-crack-downon-nursing-homes-that-endanger-resident-safety/.
55 Nurse Education, Practice, Quality and
Retention-Clinical Faculty and Preceptor
Academies (NEPQR–CFPA) Program | HRSA.
56 FY 2023 Nurse Education, Practice, Quality and
Retention (NEPQR)-Pathway to Registered Nurse
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While the comments received on the
specific details of the CMS nursing
home staffing campaign are outside the
scope of this rule, we acknowledge that
workforce development is a shared
responsibility, and encourage LTC
facilities to partner with education and
training sources to meet their staffing
needs. We are also exploring the
potential to provide additional technical
assistance to LTC facilities through the
Quality Improvement Organizations. We
appreciate the information regarding
nursing education, the number of new
graduates and the suggestion to invest in
nursing school infrastructure; however,
these issues are not within the scope of
CMS authority and this final rule.
Likewise, the request for training and
recruiting home health and hospice
providers is also outside the scope of
this rule. The request for student loan
considerations is also outside the scope
of this rule.
Comment: Several commenters
suggested that CMS should work to
promote an immigration policy that
supports nursing staff to enter the
United States and the nursing home
workforce. Another commenter
suggested building a domestic and
international pipeline for potential
nursing home workers to be recruited
and trained.
Response: We appreciate these
comments regarding the relationship
between staffing and immigration
policy. However, immigration policy is
not within the scope of CMS authority.
Comment: One commenter stated that
CMS should revisit the standards, at
minimum, within one to two years of
full implementation to determine if the
agency’s approach is yielding its
intended outcomes and assess their
impact on quality, safety, and access,
followed by periodic reevaluations and
redeterminations.
Response: We agree that it is
important to review the impact that this
final rule has on the delivery of care and
services in LTC facilities. We also
intend to monitor emerging research in
this area to further inform our policy
decisions. CMS continually reviews
existing regulations to assess their
appropriateness, effectiveness, and
continued necessity. We intend to
monitor LTC facility services, as well as
the safety and quality of resident care,
through the survey process, quality
measure performance, and PBJ data to
assess the impact of these new
requirements and determine what, if
any, future actions should be taken to
assure that all residents receive safe care
Program (PRNP) Awards | Bureau of Health
Workforce (hrsa.gov).
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at all times and that their needs are met.
We realize that standards of care are
constantly evolving and staffing
standards may need to be raised to meet
the health and safety needs of facilities
over time. The requirements in this rule
are minimum baseline standards for
safety and quality without accounting
for resident acuity. We will continue to
engage stakeholders as the requirements
are implemented.
Comment: Many commenters
expressed concern about potential
systemwide impacts of the proposed
changes, ranging from the potential for
reductions in LTC facility admissions
and census, facility closures, and the
impact of those closures on residents
and their families. Commenters gave
scenarios of residents or individuals
that may need admission to a LTC
facility and not be able to find the care
they need if fewer beds were available.
Commenters suggested that residents in
LTC facilities might face forced
discharge or transfer if sufficient RNs
and other staff were not available at the
facility, resulting in inappropriate
discharges to home or other
inappropriate settings for residents.
Some commenters expressed concern
about readmission protections for
residents when facilities say they can’t
readmit due to low staffing.
In addition, commenters stated that
various issues may occur in other
provider settings as the current state of
nurse staffing at LTC facilities evolves.
Some commenters noted that fewer LTC
facility beds could result in hospitals
having a harder time discharging
patients in need of LTC. The
commenters stated that without the
ability to transfer patients in need of
LTC to an appropriate facility, people in
need of admission to a hospital might
have to wait longer for an available bed.
This could also result in a backup in the
emergency department resulting in
longer waits for care. A commenter
stated that patients discharged from
hospitals to LTC facilities have more
acute clinical needs than patients
discharged to home.
Response: While increased staffing
needs in one provider setting can
impact other provider settings, LTC
facilities must be able to demonstrate
that the care and services they provide
meet the resident’s needs. LTC facilities
are responsible for compliance with
requirements for participation,
including but not limited to § 483.24,
which requires that each resident must
receive, and the facility must provide,
the necessary care and services to attain
or maintain the highest practicable
physical, mental, and psychosocial
well-being, consistent with the
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resident’s comprehensive assessment
and plan of care. This rule provides
flexibilities through phased
implementation timeframes and
hardship exemptions, which can
provide temporary relief to facilities that
are having workforce issues. We have
built in these flexibilities for facilities
while still prioritizing resident safety
and quality of care. The minimum
staffing standards support existing
regulations and help to ensure the staff
needed to meet the care needs and
improve the LTC facilities’ ability to
care for patients discharged from the
hospital and prevent hospital
readmissions. Although the practices of
other healthcare settings are not within
the scope of this rule, we intend to
monitor its impact for unintended
system-wide changes that may hinder or
harm patient and resident care. We
encourage LTC facilities to work with
local hospitals to ensure safe care
patient transitions. The requirements for
participation at § 483.15(e)(1) are in
place to ensure that facilities develop
and implement policies that help
facilitate the return of residents to the
facility after a hospitalization. Facilities
must have a sufficient number of
qualified staff to meet each resident’s
needs, to protect resident health and
safety while supporting access to care.
We will use available data for
monitoring residents’ health, and safety
and any unintended consequences
during the multi-year implementation of
this final rule.
Comment: Commenters expressed
concerns that the proposed rule would
draw funding and staff away from home
and community-based services (HCBS)
to facility-based settings. Moreover, this
would lead to an increased unmet need
for HCBS, poorer health outcomes for
individuals, and reduced access to
training and support for caregivers.
Furthermore, the commenter thought
that it would lead to reduced access to
culturally and linguistically appropriate
HCBS which will negatively impact
communities of color.
Response: The HCBS workforce
comprises a diverse array of worker
categories including workers who
provide nursing services, assist with
activities of daily living (such as
mobility, personal hygiene, eating) or
instrumental activities of daily living
(such as cooking, grocery shopping,
managing finances), and provide
behavioral supports, employment
supports, or other services to promote
community integration. While these
workers do include nurses (RNs and
licensed practical nurses) and NAs, the
HCBS workforce comprises many other
workers (both with and without
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professional degrees) that are not
included in the minimum staffing
requirement. Although there may be
some overlap in demand for staff in LTC
facilities and HCBS programs, we do not
have reason to believe the overlap will
be significant. We appreciate the
comments, and CMS will continue to
monitor these trends. Over time,
additional, useful information will be
supplied through finalized policies in
the Medicaid access rule and this
rulemaking concerning Medicaid funds
dedicated to the direct care workforce in
HCBS, LTC, and other institutional
settings.
Comment: Some commenters
included requests for staffing minimums
for other categories of nursing home
employees, including full time social
workers and infection prevention
control specialists. Other commenters
suggested that CMS conduct research to
determine why nurses are leaving the
nursing workforce, noting that, since the
COVID–19 PHE, many staff are going
back to school for degrees not related to
nursing.
Response: We agree that other LTC
facility staff provide important services
for resident well-being. However,
suggestions related to establishing
minimum standards for other types of
employees are outside the scope of this
final rule. We also agree that it is critical
to understand the drivers of changes in
the national nursing workforce and
encourage interested parties to conduct
research into these issues that can
inform future policy decisions.
Comment: A commenter urged CMS
to conduct research and rulemaking to
enhance social work in nursing homes.
Response: We support the use of
social work services in LTC facilities
and encourage interested parties to
conduct research into the care and
services provided by social workers and
the impacts to residents’ highest
practicable physical, mental, and
psychosocial well-being, consistent with
the resident’s comprehensive
assessment and plan of care. However,
suggestions related to establishing
minimum standards for other types of
employees are outside the scope of this
rule.
Comment: A commenter asked CMS
to support and protect union rights
through implementation of a labor
relations quality measure.
Response: The protection of union
rights through the development of
quality measures or any other means is
outside the scope of this rule. This rule,
however, is intended to support all
workers in nursing facilities by ensuring
there is sufficient staff to care for
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residents safely and thus reducing the
burden on existing workers.
Comment: A commenter expressed
concern that the proposed rule would
undermine payments for LTC pharmacy
services. For example, a facility census
may decline resulting in a decrease in
the use of pharmacy services causing
various economic challenges for LTC
pharmacies.
Response: We disagree with the
commenter’s assumption that
implementation of this rule will result
in an overall decline in resident census
that undermines reimbursement and
affects LTC pharmacy services. This
final rule includes multiple flexibilities
for eligible facilities located in areas
affected by pronounced workforce
shortages and provides staggered
implementation periods to allow time
for additional workforce development to
comply with the requirements of this
rule.
Comment: A commenter made
suggestions to add additional items
related to revenue and costs to the
Federal cost reports that LTC facilities
must complete and recommended that
CMS publicly release that additional
data after it is collected.
Response: Federal cost reporting
changes are not within the scope of this
final rule. We note that information
collections require statutory authority.
We will take the request under
advisement.
Comment: Several commenters asked
if every nursing home survey would
assess compliance with the staffing
requirements and staffing adequacy,
while other commenters asked if we
would bolster the survey process, to
accommodate enforcement of the
staffing standard. Commenters voiced
concern about the additional time that
would be required by surveyors to
determine compliance with the
minimum staffing requirements, and
other commenters questioned whether
States would get more funds for training
and technical support to conduct
surveys. Some commenters suggest
increasing the State survey budget and
the survey workforce so that
enforcement of staffing requirements
will be timely and successful.
Response: We appreciate the
comments received on the survey
process. We envision using a
combination of PBJ data and onsite
surveys to assess compliance with
various aspects of these requirements.
We will publish more details on how
compliance will be assessed after the
publication of this final rule in advance
of each implementation date for the
different components of the rule. We
intend to use the traditional process of
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communication of information to
providers and surveyors via CMS’s
Quality, Safety and Oversight Group
(QSO) memoranda and publication of
information in the CMS State
Operations Manual (internet Only
Publication, 100–07). The links to these
resources are listed below.
• Policy & Memos to States and CMS
Locations | CMS: https://www.cms.gov/
medicare/health-safety-standards/
quality-safety-oversight-generalinformation/policy-memos-states-andcms-locations.
• Quality Safety & OversightGuidance to Laws & Regulations | CMS:
https://www.cms.gov/medicare/healthsafety-standards/guidance-for-lawsregulations.
We are also committed to robustly
funding the survey, certification, and
enforcement programs to the extent
possible. The President’s FY 2025
Budget calls for an increase in funding
for these important programs and for the
survey and certification funding to be
shifted to mandatory spending starting
in the FY 2026 budget to better align the
continued need for surveys with the
type of funding.
Comment: Several commenters asked
for an evidence-based template and
updated surveyor guidance for
monitoring and enforcing staffing levels.
In addition, commenters questioned
whether surveyors will be taught
principles of evidence-based staffing
research so that their determinations of
compliance with staffing minimums are
neither subjective nor the opinion of the
surveyor.
Response: We thank the commenters
for their feedback. We will publish more
details on how compliance will be
assessed after the publication of this
final rule in advance of each
implementation date for the different
components of the rule. We envision
using a combination of PBJ data and
onsite surveys to assess compliance
with various aspects of the
requirements. We note that since the
requirements specify specific staffing
minimum thresholds, the determination
of compliance with these thresholds
will be objective, and not subjective.
However, our decisions to grant
exceptions are based on criteria that will
require the agency to use its best
judgment (for instance, in determining
whether a facility has made a good-faith
effort to hire additional staff).
Comment: Many commenters
expressed concerns related to the
importance of identifying
noncompliance and taking appropriate
enforcement actions so that residents’
health and safety are protected.
Commenters asked about the timeframe
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between the determination that a
provider is found out of substantial
compliance with the new staffing
standards and any resultant
enforcement actions, citing concerns
about potential significant time lags.
Many commenters suggested CMS
consider survey results and PBJ data for
compliance determinations and
enforcement actions. Other commenters
noted that PBJ data is available on a
quarterly basis and could be used for
more frequent compliance reviews. A
commenter asked if day to day
fluctuations in staffing will result in
citations. Some commenters suggested
rulemaking to adopt specific
enforcement rules for the HPRD
numerical minimums. Some
commenters stated that when
enforcement actions are taken, they are
too severe. Several commenters urged
CMS to establish detailed guidelines on
when a surveyor should assess
appropriate penalties at the harm or
immediate jeopardy level whenever
there is serious harm, injury,
impairment or death of a resident.
Others recognized that enforcement is
critical to ensure successful
implementation of the minimum
staffing standards and that nursing
homes should know that they face
consequences for substantial noncompliance.
Response: We appreciate and will
consider the comments as we move
forward and recognize that rigorous
data-driven enforcement will be critical
to the successful implementation of this
rule. We will publish more details on
how compliance will be assessed and
how enforcement remedies will be
imposed after the publication of this
final rule in advance of each
implementation date for the different
components of the rule. We envision
using a combination of PBJ data and
onsite surveys to assess compliance
with various aspects of the
requirements. Additionally, if finalized,
the proposal for revisions to CMPs in
the forthcoming FY 25 SNF payment
rule will give CMS more flexibility to
assess fines associated with the severity
of the citation.
Comment: The PBJ allows staffing
data to be collected from LTC facilities
on a regular basis. Several commenters
suggested that CMS improve PBJ
implementation so that it allows
facilities to report all hours worked by
staff including nurses and nurse aides
and offers facilities a reasonable
opportunity to appeal/correct PBJ data.
A commenter suggested that CMS
should send letters to facilities that
submit PBJ data showing staffing levels
that do not comply with requirements
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and ask for an explanation. Many
commenters recommended monitoring
PBJ staffing data and wanted automatic
citations issued for failure to comply
with the standards. One commenter
suggested that Federal surveyors use the
PBJ data as the basis for citations for
deficiencies and to conduct more
frequent reviews of facility compliance
with HPRD minimums than what is
currently required.
Response: Per Federal law, staffing
data submitted by a facility to the PBJ
system must be auditable back to
payrolls and other verifiable
information. Therefore, CMS does not
agree that all hours worked by staff
(such as hours that cannot be verified)
should be reported and credited, but
auditable back to verifiable information
should be reported and credited to the
HPRD calculations (unless they meet the
reporting requirements). Furthermore,
facilities have up to 45 days after the
end of each quarter to review and make
any corrections needed to the data prior
to submission. Therefore, facilities
already have the opportunity to correct
their PBJ data. We note that providers
will retain their ability to exercise
existing regulatory provisions to dispute
or appeal citations for noncompliance,
such as informal dispute resolution.
Additionally, CMS does inform
providers of their staffing levels prior to
public posting. However, we disagree
that CMS should give facilities an
opportunity for an explanation, as
compliance with the requirements is
based on whether the facility meets the
specific required staffing thresholds,
regardless of justification. A facility that
in good faith believes that it cannot
consistently meet the HPRD standards
may request an exemption, pursuant to
§ 483.35(g) as set out in this final rule.
For comments related to automatic
citations, we appreciate the suggestion
and note that surveys of compliance and
enforcement actions are conducted
pursuant to 42 CFR part 488, subparts
E and F, respectively. We will publish
more details on how compliance will be
assessed after the publication of the
final rule in advance of each
implementation date for the different
components of the rule.
Comment: Several commenters
requested that CMS publicly identify
nursing homes that fail to adjust staffing
levels for resident acuity. Other
commenters suggest that CMS should
include easy to understand information
about whether a nursing home meets the
minimum staffing standards on Care
Compare.
Response: As part of CMS’ survey and
enforcement activities, we currently
publish data for all LTC facilities on the
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Care Compare website. We appreciate
the suggestions and are committed to
providing consumers, families, and
caregivers with useful information to
help support their healthcare decisions.
Care Compare will be updated to show
whether a facility has an exemption and
will note the extent to which a facility
falls short of the minimum staffing
standards.
Comment: A commenter suggested
that PBJ and Minimum Data Set (MDS)
be improved to ensure compliance with
minimum staffing standards.
Response: We appreciate this
suggestion, and welcome suggestions for
improvement. However, the commenter
did not provide details on how PBJ and
the MDS could be improved.
Comment: A commenter requested
that CMS issue guidance prior to the
final rule on additional staffing
standards based on resident acuity and
activities of daily living (ADL) needs.
Response: We appreciate the
suggestion. CMS will issue
subregulatory guidance to surveyors for
specific requirements after the
publication of this final rule in advance
of each implementation date for the
different components of the rule.
However, we note the existing
regulations require facilities to consider
residents’ conditions and acuity when
developing their facility assessment to
determine the personnel needed to meet
residents’ needs. Subregulatory
guidance for this requirement can be
found in the State Operations Manual,
appendix PP, sec. 483.70(e) (https://
www.cms.gov/medicare/providerenrollment-and-certification/guidance
forlawsandregulations/downloads/
appendix-pp-state-operationsmanual.pdf).
Comment: Some commenters
suggested that CMS consider ways to
enhance compliance among LTC
facilities with automated data collection
techniques or other forms of information
technology.
Response: We appreciate the
suggestion. CMS remains open to
exploring ways that technology can be
leveraged to streamline data collection
and improve compliance and
enforcement.
Comment: One commenter expressed
concern that PBJ reporting guidelines
are technical and the data submitted do
not always reflect the actual staffing
levels. The concern centered around
rural providers with small census using
one nurse per shift, the nurse stays
onsite for the entire shift, including the
lunch break. However, the PBJ reporting
guidelines always exclude a 30-minute
rest period, regardless of whether the
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nurse took a 30-minute uninterrupted
break.
Response: We appreciate the concern
raised by the commenter. It is very
important that PBJ data is auditable.
Facilities need to deduct a 30-minute
meal-break from each eight-hour shift.
As the staffing data must be auditable
back to payrolls, there is no way to audit
and verify the portion of their meal
break that was spent working versus
eating. Also, some facilities pay for meal
breaks, and some do not. Allowing some
facilities to report hours for paid meal
breaks would result in reporting higher
levels of staffing based on whether or
not a facility pays for meal breaks,
instead of actual differences in the
amount of direct resident care their staff
provide. Therefore, to measure all
facilities equally, we require all
facilities to deduct 30 minutes per shift.
Information on this and other policies
related to PBJ can be found on the CMS
website for Staffing Data Submission
Payroll-Based Journal: https://
www.cms.gov/medicare/quality/
nursing-home-improvement/staffingdata-submission.
Comment: One commenter suggested
better coordination between State
surveyors and the CMS designated
Quality Innovation Network Quality
Improvement Organizations (QIN–
QIOs).
Response: We thank the commenter
for their feedback. CMS is committed to
ensuring coordination between State
surveyors and QIN–QIOs as they
conduct their individual and unique
responsibilities.
Comment: We received many
recommendations for alternative
policies or strategies for supplementing
or enhancing the LTC facility workforce.
Commenters suggested various ways of
substituting staff when determining
compliance with HPRD minimums set
out in this rule: one commenter
suggested allowing LPNs to substitute
for NAs, another suggested facilities will
substitute NAs for LPNs, yet another
commenter related that LPNs and RNs
can substitute for NAs in addition to
their own job requirements. A
commenter proposed the creation of a
transportation aide role so that residents
could move around the facility, and this
would in turn improve quality of life.
One commenter stated that expansion of
training for paid feeding assistants
would be beneficial to the residents.
The same commenter suggested
flexibility within the regulations to
allow technology to supplement the
workforce such as robots, that can
deliver food to residents at their tables.
Response: We thank commenters for
these recommendations. Under the
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current regulations, facilities can
already use many of these suggestions,
such as using feeding assistants,
transportation aides, and technology to
supplement the nursing workforce in
LTC facilities, paying nurse aides while
they are in training, and using LPNs/
LVNs to deliver some NA care. Facilities
may continue to implement these
strategies as needed to ensure that all
residents receive high-quality care in
accordance with their plan of care and
consistent with the requirements for
participation.
Comment: A small number of
commenters addressed the relationship
between the proposed requirements and
CMS’ statutory authority. A commenter
noted that CMS is taking these
minimum staffing requirement actions
based on the statutory authority to
provide services to attain or maintain
the highest practicable physical, mental,
and psychosocial well-being of each
resident, in accordance with a written
plan of care. This commenter urged
CMS to establish higher minimum
staffing levels in a way that fulfills this
statutory mandate. One commenter
suggested that CMS did not have
authority to establish RN staffing
standards for 24 hours per day, 7 days
per week, and suggested that CMS
should augment the current 8 hours per
day, 7 days a week RN services
requirement with a higher minimum RN
HPRD to achieve our policy goal.
Finally, one commenter contended that
CMS lacks the authority to finalize the
minimum staffing standards, suggesting
that CMS cannot require HPRD
standards or increase the current 8
consecutive hours of registered nurse
hours a day 7 days a week minimum
standard to 24 hours a day standard.
Response: We appreciate the
comments received on whether or not
CMS has the authority to enact these
regulations. As discussed in section
II.A.1. of this final rule, various
provisions in sections 1819 and 1919 of
the Act provide CMS with the statutory
authority for the requirements of this
rule. The Secretary has concluded that
these HPRD levels and RN onsite 24/7
requirements are necessary for resident
health, safety, and well-being, under
sections 1819(d)(4)(B) and 1919(d)(4)(B)
of the Act, which instruct the Secretary
to issue such regulations relating to the
health, safety, and well-being of
residents as the Secretary may find
necessary. We agree with the
commenter that section 1819(b)(2) and
1919(b)(2) of the Act, which require
facilities to provide services to attain or
maintain the highest practicable
physical, mental, and psychosocial
well-being of each resident, also
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supports CMS authority to establish
these requirements. Also, sections
1819(b)(1)(A) and 1919(b)(1)(A) of the
Act require that a SNF or NF must care
for its residents in such a manner and
in such an environment as will promote
maintenance or enhancement of the
safety and quality of life of each
resident. While sections 1819(b)(4)(C)
and 1919(b)(4)(C) of the Act state that a
facility must provide 24-hour licensed
nursing services which are sufficient to
meet the nursing needs of its residents,
and must use the services of a registered
professional nurse for at least 8
consecutive hours a day, 7 days a week,
CMS is using separate authority as
described above to establish these new
requirements rather than the authorities
found at sections 1819(b)(4)(C) and
1919(b)(4)(C) of the Act. Our goal is to
protect resident health and safety, and
the persistent and pervasive safety
issues described in the proposed rule
and in this final rule make it clear that
it is necessary to establish new
minimum requirements to fulfill the
Secretary’s responsibility to establish
other requirements related to resident
health and safety.
2. Definitions (§ 483.5)
We proposed to revise § 483.5 to
include the definition of ‘‘hours per
resident day’’ (HPRD), that is, staffing
hours per resident per day is the total
number of hours worked by each type
of staff divided by the total number of
residents as calculated by CMS.57 We
also proposed to add the definition of
‘‘representative of direct care
employees’’ who is an employee of the
facility or a third party authorized by
direct care employees at the facility to
provide expertise and input on behalf of
the employees for the purposes of
informing a facility assessment. We
received no comments on how we
define hours per resident per day
(HPRD). We received no comments on
how we define representative of direct
care employees. As such, we are
finalizing the definition of ‘‘hours per
resident day’’ (HPRD) and
‘‘representative of direct care
employees’’ as proposed.
Final Rule Action: We are finalizing
the definition of ‘‘hours per resident
day’’ as the total number of hours
worked by each type of staff divided by
the total number of residents as
calculated by CMS. We are finalizing
the definition of ‘‘representative of
direct care employees’’ as an employee
of the facility or a third party authorized
by direct care employees at the facility
57 https://data.cms.gov/provider-data/dataset/
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to provide expertise and input on behalf
of the employees for the purposes of
informing a facility assessment.
3. Minimum Staffing Standards
(§ 483.35(a))
In the proposed rule, we discussed
revisions to the Nursing Services
regulations at § 483.35(a)(1)(i) and (ii) to
require facilities to meet minimum
staffing standards—0.55 HPRD of RNs
and 2.45 HPRD of NAs (see 88 FR 61366
through 61370, 61428). Specifically, at
§ 483.35(a)(1)(i) we proposed individual
nurse staffing type standards for RNs
and NAs. We proposed to require
facilities to meet minimum staffing
standards—0.55 HPRD of RNs and 2.45
HPRD of NAs—as well as to maintain
sufficient additional personnel,
including but not limited to LPN/LVNs,
and other clinical and non-clinical staff,
to ensure safe and quality care, based on
the proposed facility assessment
requirements at new § 483.71. We also
solicited comments on establishing an
alternative total nurse staffing standard,
such as 3.48 HPRD, in place of a
requirement only for RNs and NAs, or
in addition to a requirement for RNs and
NAs that could also encompass other
nursing staff types. We considered an
alternative standard of 3.48 HPRD for
total nurse staffing—inclusive of the
0.55 HPRD of RNs and 2.45 HPRD of
NAs minimum standards—based on the
literature evidence (see 88 FR 61259
through 61366 for more details). CMS
solicited comments on a minimum total
nurse staffing standard of 3.48 HPRD,
the necessity of a total staffing standard,
and whether a total staffing standard
should be adopted in place of a
requirement only for RNs and NAs, or
in addition to a requirement for RNs and
NAs. We also emphasized that
comments on the recommended policy
or an alternative, must support and
promote acceptable quality and safety in
LTC facilities, which is the intended
goal. We also requested that
commenters submit evidence and data
to support their recommendations to the
extent possible.
Comment: We received many
comments on the numerical HPRD
minimum staffing standards.
Commenters offered numerous reasons
for supporting CMS efforts to establish
minimum staffing standards, including
increased accountability for facilities
regarding the treatment of staff and
residents, and the care provided.
Commenters that supported establishing
numerical HPRD standards also noted
that such requirements would assure
that safety is not compromised for both
staff and residents. Commenters also
stated that the proposed staffing
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requirements should be considered as
the start of improvements to be built
upon over time, rather than as the
singular end goal for addressing LTC
facility safety and quality challenges.
Others commended the Administration
for proposing minimum nurse staffing
standards, stating that ‘‘the NPRM
[notice of proposed rulemaking]
represents a paradigm shift in nursing
home oversight to promote quality of
care’’. Another commenter stated, ‘‘we
strongly encourage CMS to adopt the
proposed standards. These standards
will set a floor (baseline) that prevents
overall resident harm and jeopardy and
ensure all residents, regardless of race or
geography, and allows for nursing home
to staff above those standards based on
resident acuity.’’ Another commenter
noted that CMS must clarify that, ‘‘the
minimum staffing levels are considered
to be only for residents with the lowest
acuity needs.’’
Response: We thank commenters for
their support in improving resident care
and safety. We agree that establishing
minimum staffing requirements will
promote quality in LTC facilities and
ensure safety is not compromised for
both staff and all residents. Facilities
must meet, at a minimum, the 3.48 total
nurse staffing, .55 RN, and 2.45 NA
HPRD (as finalized in this rule and
discussed in detail later in this section)
regardless of the individual facility’s
resident case-mix, as these requirements
establish the minimum floor (baseline)
for staffing requirements. We expect that
many facilities will need to staff above
the minimum standards to meet the
acuity needs of their residents
depending on case-mix and as
mandated by the facility assessment
required at § 483.71.
Comment: We received several
comments on establishing individual
minimum standards for RNs and NAs.
Some commenters supported
establishing individual standards,
noting that setting individual minimum
staffing standards will ‘‘avoid
aggregating HPRD across job
classifications.’’ For example,
commenters noted that mandating a
specific number of minimum hours for
care provided by NAs would increase
facility accountability and reduce
discretion regarding the type of staff
facilities may use to comply with the
requirement. In addition, one
commenter noted the specific
individual standards for RNs and NAs
would improve some residents’ health
and quality of life.
Commenters also questioned our use
of the acronyms ‘‘NA’’ (nurse aide)
versus ‘‘CNA’’ (certified nurse aide) and
requested clarification regarding the
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type of staff that would count towards
the minimum requirement. Some
commenters supported having a
minimum staffing standard for NAs.
However other commenters suggested
that CMS require the use of CNAs since
this is a Federal requirement and
strongly opposed the use of ‘‘uncertified
and untrained staff’’. For example, one
commenter noted that nursing assistants
are required to meet certification
standards within a specified period and
indicated that nursing homes are not
allowed to rely on NAs to provide basic
care unless they meet the training
requirements as required.
Response: We appreciate the
commenters’ support for the minimum
HPRD staffing standard. Current
regulations at § 483.35(a)(1)(i) and (ii)
require facilities to have sufficient
numbers of licensed nurses and other
nursing personnel, including but not
limited to NAs, available 24 hours a day
to provide nursing care to all residents
in accordance with the resident care
plans.58 Nurse aides include certified
nurse aides (CNAs), aides in training
and medication aides/technicians,
which all require training. Specifically,
at § 483.5 existing regulations define
‘‘nurse aide’’ as any individual
providing nursing or nursing-related
services to residents in a facility. This
term may also include an individual
who provides these services through an
agency or under a contract with the
facility but is not a licensed health
professional, a registered dietitian, or
someone who volunteers to provide
such services without pay. Nurse aides
do not include those individuals who
furnish services to residents only as
paid feeding assistants as defined in 42
CFR 488.301. As such, we disagree with
having a staffing standard for CNAs
only. In addition, in some facilities
there is an overlap in responsibilities
between CNAs, medication aides/
technicians, and aides in training. We
agree with commenters that having a
separate, specific minimum staffing
level requirement for RNs and NAs is
important to improving resident health
and safety and are finalizing this
proposed requirement at § 483.35.
Comment: Many commenters who
supported establishing numerical
staffing standards recommended ways
to strengthen the proposed minimum
HPRD staffing requirements. The
commenters stated that the proposed
0.55 RN and 2.45 NA HPRD
requirements were ‘‘not sufficient to
58 42 CFR 483.35, https://www.whitehouse.gov/
briefing-room/statements-releases/2022/02/28/factsheet-protecting-seniors-and-people-withdisabilities-by-improving-safety-and-quality-of-carein-the-nations-nursing-homes/.
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protect the health and safety of
residents’’ and ‘‘risk normalizing
staffing levels associated with poor
quality of care. . . .’’ Commenters also
noted that facilities in both urban and
rural areas already meet far higher nurse
staffing standards than what CMS
proposed and as such CMS should
consider strengthening the proposed
minimum nurse staffing standard.
Commenters offered varying
modifications to strengthen the
proposed minimum nurse staffing
standard, which included establishing a
range of minimum staffing standards
based on resident acuity and need for
assistance with activities of daily living
(ADLs) or establishing a higher HPRD as
the minimum standard. For example,
one commenter suggested that CMS
revise the proposal to require facilities
to meet a minimum 0.75 HPRD for RNs
and 2.8 HPRD for NAs, noting that many
nursing homes currently staff at an
average of 3.63 HPRD which is above
the proposed minimum standard. While
some commenters supported
establishing specific minimum
requirements for RNs and NAs, several
commenters strongly supported the
creation of a minimum total direct care
nurse staffing standard that would
include minimum HPRD requirements
for RNs and nurse aides and incorporate
LPNs/LVNs either as part of a minimum
licensed nursing standard that includes
a minimum RN HPRD or as a separate
minimum LPN/LVN HPRD standard.
For example, one commentator
indicated that ‘‘a minimum standard for
LPNs would reinforce a minimum
standard of 1.4 HPRD for licensed
nurses’’. Others suggested ‘‘LPNs need
to count toward either RN or CNA
mandated ratios. One commentator
noted that ‘‘LPNs should also be
counted in the 0.55 RN HPRD
requirement.’’ Commenters who
supported the inclusion of LPNs
emphasized the unique role that LPNs
play in providing quality care and the
importance of capturing their
contributions in a minimum nurse
staffing standard. Commenters indicated
that LPNs provide essential skilled care
and critical services that are not within
a CNA’s scope of practice. Furthermore,
some commenters shared concerns
about the unintended consequences that
establishing a minimum nurse staffing
standard that lacks LPNs may have on
staff retention and career advancement.
These commenters suggested that our
proposal, and the lack of incorporating
LPNs into the requirement,
marginalized the contributions of LPNs
in the LTC facility workforce. However,
commentators were not consistent in
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their suggestions for HPRD ratios of
LPN/LVNs.’’ Lastly, many commenters
strongly supported a minimum
threshold of 3.48 HPRD for total nurse
staffing and suggested finalizing an even
higher numerical standard than the 3.48
total HPRD, ranging up to 4.2 HPRD.
Response: We appreciate the
thoughtful and nuanced comments
received on the proposed minimum
HPRD staffing standard and the
suggestions for revision to further
strengthen the requirement. Ensuring
that nursing home residents receive
safe, reliable, and quality care is a
critical function of the Medicare and
Medicaid programs and a top priority
for CMS. As such, requiring Federal
minimum nurse staffing standards will
create a consistent minimum floor
specific to nurse staffing levels and
reduce the variability in nurse staffing
across States. In addition, while
establishing minimum nurse staffing
standards will create broadly applicable
standards at which all residents across
all facilities will be at significantly
lower risk of receiving unsafe and lowquality care. We emphasized in the
proposed rule and reiterate here that
facilities are also required to staff above
the minimum standard, as appropriate,
to address the specific needs of their
resident population (88 FR 61369). We
expect that most facilities will do so in
line with strengthened facility
assessment requirements at § 483.71 (88
FR 61368). As stated in the proposed
rule, we will also revisit the Federal
minimum staffing standard over time, as
the rule is implemented, to determine
whether upward revisions in staffing
levels are needed.
We appreciate the comments received
requesting that we incorporate a total
nursing standard that includes a
minimum HPRD specifically for LPN/
LVNs. In the proposed rule, we
indicated minimum individual
standards for RNs and NAs based on
evidence demonstrating that RNs and
NAs have a consistently greater
demonstrable effect on quality. While
we believe LPNs, in addition to all staff,
are vitally important to resident care, we
detailed in the proposed rule the
research evidence that suggest that a
greater RN presence has been associated
with higher quality of care and fewer
deficiencies. We also noted literature in
support of having adequate staffing
levels, specifically NAs, to prevent a
high rate of unusual patient safety
events such as resident falls.
We recognize the importance of the
role of LPN/LVNs staffing in LTC
facilities and acknowledge their
increasing responsibilities for providing
resident care. However, we found
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insufficient research evidence that
supports a particular minimum standard
for LPN/LVNs nor did we receive
supporting evidence for particular
minimum standards for LPN/LVNs from
commenters. We also noted that
facilities must maintain sufficient
additional personnel, including but not
limited to LPN/LVNs, and other clinical
and non-clinical staff, to ensure safe and
quality care based on the proposed
facility assessment requirements at
§ 483.71 (88 FR 61368). Additionally,
hours worked by LPN/LVNs may be
counted toward the 3.48 total nurse
staffing HPRD requirement being
finalized as part of this rule.
We agree that a higher HPRD of
nursing staff such as 0.75 HPRD of RNs,
2.8 HPRD of NAs, and 4.1 HPRD of total
nurse staffing could produce increased
improvements in safety and quality of
resident care and that the alternative
approach to establish a minimum total
nursing standard is one effective way to
create improvements while also
providing flexibility. We also recognize
that there is evidence that suggests that
a lower HPRD of nursing staff—0.45
HPRD of RNs, 2.15 HPRD of NAs, and
3.30 HPRD of total nurse staffing could
lead to a 3.3 percent of care delayed,
whereas having no minimum staffing
requirements could result in a higher i.e.
a. 5.6 percent of care delayed. However,
we maintain that establishing individual
minimum staffing standards for RNs and
NAs specifically is the best approach to
increasing quality and safety given the
evidence suggesting that RNs and higher
numbers of NAs significantly improve
quality.
We also recognize that establishing a
total nurse staffing standard could
produce increased improvements in
safety and quality of resident care. We
agree with commenters’ assertions that
the proposed staffing standards could be
strengthened, and we believe that the
addition of a total nurse staffing
standard will promote resident safety
and high-quality care. We have chosen
3.48 HPRD as the minimum total
staffing standard, which is inclusive of
individual staff-specific standards, in
light of comments on the proposed rule
indicating the value of this addition and
evidence from the 2022 Nursing Home
Staffing Study, in addition to other
factors discussed in the proposed rule.
Finally, we share the concern raised by
commenters about the potential for
unintended consequences resulting
from the absence of an LPN/LVN
standard, noting facilities may be
incentivized to terminate LPN/LVNs
and replace them with either nurse
aides, RNs or a lower paid unlicensed
staff. A total nurse staffing standard
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guards against these unintended
consequences. Therefore, we are
finalizing a minimum standard for total
nurse staffing and requiring minimum
individual standards for RNs and NAs.
Specifically, we are finalizing a
requirement for facilities to provide the
minimum 3.48 HPRD of total nurse
staffing, which must include at least
0.55 HPRD of RNs and 2.45 HPRD of
NAs. We note that facilities may use any
combination of nurse staffing (RN, LPN/
LVN, or NA) to account for the
additional 0.48 HPRD to comply with
the total nurse staffing standard. We
remain committed to continued
examination of staffing thresholds,
including careful work to review quality
and safety data resulting from initial
implementation of finalized policies
and robust public engagement. Should
subsequent data indicate that additional
revisions to the staffing minimums are
warranted, we will revisit the minimum
staffing standards with continued
consideration of all relevant factors.
Comment: Many commenters did not
support the proposed rule and
establishing minimum staffing
standards, whether at the individual or
total nurse staffing levels. Commenters
cited several concerns, including
workforce shortages, costs of
implementing the proposed changes,
Medicaid underfunding, the diversity of
nursing homes and their resident needs,
and potential unintended consequences.
For example, one commenter stated that
‘‘the proposed rule fails to consider in
a serious way where nursing homes will
find the estimated 12,639 additional
registered nurses (RNs) and 76,376
additional nurse aides (NAs) needed to
comply with its requirements.’’ Other
commenters suggested that compliance
with the HPRD minimums will be
difficult or impossible to achieve with
staffing shortages and major challenges
with workforce training and
development. Many commenters
focused on the challenges faced by rural
facilities, noting that they may face
greater challenges recruiting staff.
Several commenters shared concerns
regarding the costs and burden imposed
by the proposed rule and opposed a
minimum staffing standard without
dedicated funding to support its
implementation. These commenters
suggested that the cost of compliance
would create unsustainable financial
burdens for facilities and negatively
impact residents by forcing facilities to
limit admissions or close. For example,
we received many comments from
certain categories of facilities that
expressed concerns about the potential
impact of the minimum HPRD
requirements on the operations of their
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40893
individual facilities and unique resident
populations, such as tribally-owned
facilities. However, several commenters
also asserted that existing facility
resources may be allocated to support
staffing improvements and a minimum
staffing standard, but indicated that
facilities may be allocating such
resources elsewhere. Moreover,
commenters opposed to establishing a
minimum staffing standard described
the proposal as a ‘‘one-size-fits-all’’
numeric standard and strongly
encouraged CMS not to proceed with
finalizing the proposed rule, especially
as the LTC workforce continues to
rebound from the COVID–19 PHE.
These commenters preferred that
staffing standards be regulated at the
State level and shared concerns about
conflict between our proposal and
States that already have staffing
standards. Some commenters also
suggested that there are currently
facilities that demonstrate a high quality
of care delivery, despite not currently
meeting the proposed staffing levels.
They also noted that there are facilities
with some of the poorest quality
outcomes based on CMS data who
currently meet the proposed staffing
levels.
Response: We appreciate the concerns
raised by commenters regarding the
challenges that a minimum staffing
requirement will impose on LTC
facilities. We also acknowledge the
impact of the COVID–19 PHE on the
health care industry, as discussed in the
proposed rule, and recognize the
challenges that nursing homes are facing
as they relate to staffing. However, the
COVID–19 PHE also highlighted the
long-standing concerns with inadequate
staffing in LTC facilities and we
reiterate that evidence has shown that
appropriate staffing made a crucial
difference in quality of care as part of
the overall response to the COVID–19
PHE in LTC facilities (see 88 FR 61356).
In the proposed rule, we outlined the
need for a minimum nurse staffing
standard noting the consequences of
inadequate staffing, such as poor
resident outcomes, adverse events, and
delayed or omitted basic care tasks (88
FR 61355). We also included in the
proposed rule an impact analysis for
public comment and responses to
comments received can be found in
section VI., ‘‘Regulatory Impact
Analysis,’’ of this final rule. We
maintain that chronic understaffing
continues in LTC facilities and evidence
demonstrates the benefits of increased
nurse staffing in these facilities. Indeed,
a number of the comments we received
on the proposed rule further highlighted
the danger from a lack of sufficient
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staffing for residents as well as the
negative effects that chronic
understaffing has on the nursing
workforce. As such, we believe that
requiring a Federal minimum nurse
staffing standard will create a consistent
floor (baseline) across all facilities and
reduce the variability in the nurse
staffing HPRD across States. In tandem,
we believe policies finalized and
discussed in this rule will help to
advance equitable, safe, and quality care
for all residents by reducing the risk of
residents receiving unsafe and lowquality care. Therefore, we are finalizing
our proposal to establish minimum
nurse staffing standards for LTC
facilities as discussed in this final rule.
We recognize the concerns raised by
commenters regarding the cost of this
rule, requests for additional funding,
and workforce challenges. In light of
these concerns, CMS announced a
national campaign to support staffing in
nursing homes.59 As previously
discussed, CMS will work to develop
programs that make it easier for
individuals to enter careers in nursing
homes, investing over $75 million in
financial incentives such as tuition
reimbursement. In addition, the
implementation of the requirements in
this final rule are phased-in to allow all
facilities the time needed to prepare and
comply with the new requirements
specifically to recruit, retain, and hire
nurse staff as needed. Finally, the rule
also finalizes requirements that will
allow for a hardship exemption in
limited circumstances. While we fully
expect that LTC facilities will be able to
meet our requirements, we recognize
that external circumstances may
temporarily prevent a facility from
achieving compliance despite a facility’s
demonstrated best efforts. Details
regarding the finalized implementation
timeframe and exemption framework
are discussed in sections II.B.5 and
II.B.7 of this rule, respectively (that is,
a phased implementation up to 5 years
for rural facilities and up to 3 years for
non-rural facilities).
Comment: Some commenters
suggested that the timeframe used to
determine compliance with the
minimum HPRD should be set for at
least one year from the date of the
survey for which the compliance is
being determined. Specifically,
commenters suggested that the lookback
period should cover a full annual
certification period and emphasized that
facilities should be held accountable for
59 https://www.cms.gov/newsroom/fact-sheets/
medicare-and-medicaid-programs-minimumstaffing-standards-long-term-care-facilities-andmedicaid.
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staffing decisions through an entire
certification period. Comments also
suggested that compliance should be
determined by reviewing the facility’s
quarterly average HPRD and the
lookback period should be no longer
than 1 year. For example, one
commenter stated that a quarterly
average of a facility’s HPRD for nurse
staffing would align more closely to
what consumers see on CMS Care
Compare and what is used in the CMS
Five-Star Quality System. They note
that this type of consistency helps
consumers and providers understand
the requirements and monitor
performance.
Response: We agree that creating
consistency between what is publicly
reported can better inform consumers
and help facilities’ understanding of the
compliance requirements. As such, we
are not finalizing our proposal to limit
determinations of compliance with
hours per resident day requirements to
the most recent available quarter of PBJ
System data submitted in accordance
with § 483.70(p). We envision
compliance will be assessed by using a
combination of PBJ data and surveyor
review and observations. We note that
CMS already uses PBJ in the existing
survey process, and we instruct
surveyors to review a report of each
facility’s most recent quarter of PBJ data
(or additional quarters if warranted), to
help target their investigations of
compliance. CMS intends to calculate
each facility’s staffing hours per resident
per day based on data required to be
submitted to CMS, such as existing data
required at § 483.70(p) (as redesignated
in this final rule) for electronic
submission of staffing information
(which is submitted through the PBJ
system). As with all regulations, CMS
publishes information on how
compliance will be assessed in the State
Operations Manual, appendix PP, and
in the survey procedure documents
found on the CMS web page for nursing
home surveys.60 Similarly, we will
publish more details on how
compliance will be assessed after the
publication of this final rule in advance
of each implementation date for the
different components of the rule.
Comment: In addition to the proposed
requirements, we also solicited
comments on the following issues:
• The benefits and trade-offs
associated with different staffing
standards;
• Use of case-mix adjusted staffing
HPRD for each facility (rather than
60 https://www.cms.gov/Medicare/ProviderEnrollment-and-Certification/GuidanceforLawsAnd
Regulations/Nursing-Homes.
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solely the facility’s self-reported staffing
information) to assess compliance with
the minimum staffing standards, steps
CMS can take to support LTC facilities
in predicting what their case-mix
adjusted staff might be and hire in
expectation of that adjusted staffing
level, and any resources facilities will
need to proactively calculate their
existing HPRD for nursing staff;
• Alternative policies or strategies we
should consider to ensure that we
enhance compliance, safeguard resident
access to care, and minimize provider
burden.
We received few comments related to
the specific benefits and trade-offs
associated with different staffing
standards. Commenters stated that a
requirement with individual staffing
levels for specific nurse types reduces
flexibility, which may result in noncompliance with the staffing
requirements. In contrast, a total nurse
staffing standard or combined total
standard with individual thresholds for
specific nurse types offers the facility
the flexibility to adjust as needed to
day-to-day shifts in staffing. Moreover,
commenters noted concerns about
complying with minimum staffing
standards that differ significantly from
State staffing requirements. We also
received very few comments related to
adopting a case-mix adjusted staffing
HPRD for each facility to assess
compliance with the minimum staffing
standards. However, commenters who
provided feedback shared concerns with
adopting case-mix adjustments to
staffing HPRD standards, noting that the
adjusted HPRD is derived from MDS
data that offers a snapshot of the past
and does not predict future staffing
needs. Another commenter also shared
concerns that the data currently used to
determine case-mix adjustments is
flawed and should not be used to create
acuity-adjusted staffing requirements.
Response: We thank commenters for
their thoughtful feedback in response to
our comment solicitations. We agree
that there are varying approaches to
establishing a minimum staffing
standard that would create greater
flexibility, such as a implementing a
total nurse staffing standard with
individual staffing levels for specific
nurse staff. As discussed, we are
modifying our proposal to finalize a
higher total standard that will increase
improvements in quality and safety
while providing flexibility for providers
in meeting the minimum standard. We
agree with commenters who indicated
that there are several factors to consider
when making case-mix adjustments to
assess compliance with the minimum
HPRD staffing standards, including the
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need to ensure that facilities are able to
proactively predict and calculate what
their case-mix adjusted HPRD for staff
might be. We believe that additional
consideration is needed to analyze the
use of case-mix adjusted staffing HPRD
for each facility to assess compliance
with the minimum staffing standard and
will keep this suggested approach in
mind for future rulemaking.
Comment: We solicited comments on
evidence that States relied on when they
adopted their specific minimum nurse
staffing standards and the rate of
compliance with the State’s staffing
standards. We did not receive comments
that provide the evidence that States
relied on when they adopted specific
minimum nurse staffing standards,
however we did receive very few
comments on the impact of the
minimum nurse staffing standards that
States adopted. One commenter stated
that overall number of nursing staff in
nursing homes influences quality in
nursing homes. Another commenter
noted that ‘‘Washington State already
has established staffing minimums.
They are effective, they are enforced,
and there is an established process for
waivers.’’
We also received very few comments
on rates of compliance with State
staffing mandates. For example, one
commenter stated that nearly 30 percent
of their State’s nursing homes have
difficultly complying with their
minimum staffing requirement. Another
commenter noted that their State
successfully improved compliance with
minimum staffing requirements as a
result of the implementation of
administrative penalties for facilities
that failed to comply with the State’s
minimum HPRD staffing requirement,
citing public health data following the
implementation of State’s
requirements.61
Response: We appreciate the
comments received on compliance with
State minimum staffing requirements,
which appears to vary. We believe that
establishing a national floor (baseline)
for nurse staffing in nursing homes will
lead to improvements in quality across
all States and reduce disparities in care.
However, as mentioned previously, the
provisions of this rule are not intended
to, and do not preempt the applicability
of any State or local law providing a
higher standard (in this case, a higher
HPRD requirement for total nurse
staffing, RNs and/or NAs, an RN
coverage requirement in excess of at
least one RN on site 24 hours per day,
61 California Department of Public Health, 3.2
Nursing Hours Per Patient Day data as of November
6, 2019.
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7 days a week) than required by this
final rule.
Final Rule Action: We are modifying
our proposal and finalizing a
requirement for facilities to provide a
minimum total nurse staffing standard
of 3.48 HPRD that must include at least
0.55 HPRD of RNs and 2.45 HPRD of
NAs. We are not finalizing our proposal
to limit determinations of compliance
with hours per resident day
requirements to the most recent
available quarter of PBJ System data
submitted in accordance with
§ 483.70(p).
40895
4. Registered Nurse 24 Hours per Day,
7 Days a Week (§ 483.35(b)(1))
The existing LTC facility staffing
regulations require an RN to be onsite 8
consecutive hours a day, 7 days a week
(§ 483.35(b)(1)).62 In other words, an RN
is required to be onsite for a total of 8
consecutive hours out of 24 hours a day.
The LTC facility may decide to allocate
all 8 consecutive hours of RN time to
one day shift or an evening shift for a
24-hour day, similarly to the HPRD
proposed for RNs. To address health
and quality of care concerns and to
avoid placing LTC facility residents at
risk of preventable safety events due to
the absence of an RN, we proposed to
revise § 483.35(b)(1) to require LTC
facilities to have an RN onsite 24 hours
a day, 7 days a week.
An existing statutory waiver for
Medicare SNFs, set out at section
1819(b)(4)(C)(ii) of the Act and
implemented at § 483.35(f), permits the
Secretary to waive the requirements of
§ 483.35(b) to provide the services of a
RN for more than 40 hours a week,
including the director of nursing. We
proposed that facilities would use this
process to pursue a waiver of the 24
hours a day, 7 days a week requirement.
In addition to proposing the 24-hour,
7 days a week requirement for an RN,
we noted that the separate existing
requirement for the director of nursing
(DON) at § 483.35(b)(2) would remain.
Specifically, all LTC facilities are
required to designate an RN to serve as
the DON on a full-time basis
(§ 483.35(b)(2)). The current rule
stipulates that the DON can serve as a
charge nurse only if the facility has an
average daily occupancy of 60 or fewer
residents (§ 483.35(b)(3)). Since the
DON must be an RN, the DON is
included in the proposed nurse
minimum staffing requirements as an
RN. All RNs with administrative duties,
including the DON, should be available
for direct resident care when needed.
However, the DON, as well as other
nurses with administrative duties,
would likely have limited time to
devote to direct resident care. We are
concerned that for some LTC facilities
having the DON as the only RN on site
might be insufficient to provide safe and
quality care to residents. This concern
was also expressed in the NASEM 2022
publication discussed in the proposed
rule, in which the NASEM
recommended that the DON not be
counted in the requirement for an RN 24
hours, 7 days a week.63 Hence, in the
2023 proposed rule we also solicited
comments on the following specific
questions:
• Does your facility, or one you are
aware of, have an RN onsite 24 hours a
day, 7 days a week? If not, how does the
facility ensure that staff with the
appropriate skill sets and competencies
are available to assess and provide care
as needed?
• If a requirement for a 24 hour, 7 day
a week onsite RN who is available to
provide direct resident care does not
seem feasible, could a requirement more
feasibly be imposed for a RN to be
‘‘available’’ for a certain number of
hours during a 24 hour period to assess
and provide necessary care or
consultation provide safe care for
residents? If so, under what
circumstances and using what
definition of ‘‘available’’?
• Should the DON be counted
towards the 24/7 RN requirement or
should the DON only count in particular
circumstances or with certain
guardrails?
• Are there alternative policy
strategies that we should consider to
address staffing supply issues such as
nursing shortages?
We received numerous comments
regarding this proposal. Upon reviewing
and analyzing these comments, we are
finalizing a revision of the proposal as
described in the responses below:
Comment: Many commenters,
including some professional provider
organizations, advocacy groups, and
labor organizations supported the
proposed requirement for an RN to be
onsite 24 hours a day, 7 days a week
that is available for direct resident care.
Some of these commenters also noted
that other experts and organizations
have for many years been supporting a
requirement for at least one RN on site
at a LTC facility 24 hours a day, 7 days
62 42 CFR 483.35, https://www.whitehouse.gov/
briefing-room/statements-releases/2022/02/28/factsheet-protecting-seniors-and-people-withdisabilities-by-improving-safety-and-quality-of-carein-the-nations-nursing-homes/.
63 National Academies of Sciences, Engineering,
and Medicine. 2022. The National Imperative to
Improve Nursing Home Quality: Honoring Our
Commitment to Residents, Families, and Staff,
Recommendation 2B.
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a week. One commenter noted that it
was the RN that put the ‘‘skilled’’ into
‘‘skilled nursing care’’ that residents
require for a stay in a LTC facility. Some
of these commenters stated that the
current requirement was not only
insufficient but put residents at risk of
preventable safety events. Some
commenters also supported the proposal
for a 24/7 RN due to the increased
acuity of residents and their complex
medical, physical, and behavioral health
care needs. As commenters noted, LTC
facilities are caring for residents with
complex medical and behavioral health
needs. They are also caring for a
growing population of short-term
residents recovering from serious health
care issues, surgery, or other injuries.
Other commenters pointed out the
improved outcomes to residents that
result from greater RN staffing.
Commenters also pointed out that
greater RN staffing levels are associated
with positive quality measures and
fewer quality of care deficiencies, such
as, fewer pressure ulcers; lower restraint
use; decreased infections, including
urinary tract infections (UTIs); less pain
and the need for pain medication;
improved activities of daily living
(ADLs); less weight loss and
dehydration, less use of antipsychotic
medication; more morning care; and
lower mortality rates.
Many other commenters, including
some industry and provider
organizations, supported the 24/7 RN
requirement but were very concerned
about some LTC facilities’ ability to
comply with this requirement. Other
commenters, for the same reasons,
opposed the 24/7 RN requirement. Some
commenters contended that the
requirement was too expensive and was
an unfunded mandate. While others
contended that the requirement was not
feasible due to a lack of available staff.
As noted previously, however, some
commenters denied there was a staffing
shortage noting that the ‘‘shortage’’
could be resolved by higher pay and
better working conditions.
Response: As demonstrated by the
comment summary, we received an
abundance of comments expressing
diverse views on the 24/7 RN
requirement. We appreciate the support
for the proposal. We agree that an RN’s
education, training, and scope of
practice is necessary to provide the
skilled care that LTC facility residents
require for safe and quality care. The
increased acuity of residents, both short
and long-term, with their
correspondingly complex medical,
physical, and behavioral health care
needs requires an RN’s expertise. In
addition, the literature clearly
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demonstrates improvement in resident
outcomes when there is an increase in
RN staffing. While we acknowledge the
assertions by the commenters who were
either concerned about the feasibility of
the proposal or opposed to the proposal,
we believe that the benefits of
improving resident health and limiting
preventable safety events by a stronger
RN presence are vital. Therefore, we are
finalizing the 24/7 RN proposal with
revisions as detailed below.
Comment: Some commenters stated
that a 24/7 RN was unnecessary for
resident care. They pointed out that the
residents are sleeping during the night
and do not require an RN’s services.
They also asserted that the care staff at
most SNFs can provide quality care by
following care plans and initiating the
protocols established by the RN during
the day without the RN being on site 24
hours a day. They contended that the
only facility where RNs are needed
around the clock are hospitals,
especially in the areas of critical care.
One organization noted that according
to its members the majority of LTC
facilities do not have an RN on site 24/
7.
Response: We agree with the
commenters that LPN/LVNs and NAs
can provide quality care by following
the care plans and protocols established
by an RN. However, it is the RN’s
education, training, and scope of
practice, especially in nursing
assessment, that is missing from
resident care when an RN is not readily
available. Residents can have changes in
their physical and behavioral health at
any time of the day. These changes
could possibly require that the nursing
staff assess the resident to determine
whether there needs to be a change to
a resident’s care, such as the
administration of some pro re nata or
PRN 64 medications; whether
consultation with another health care
provider, such as a physician is
required; or whether the resident
requires care beyond what the LTC
facility could provide, requiring a
transfer to another facility such as an
acute care hospital. It is an RN whose
education, training, and scope of
practice includes the nursing
assessment skills needed to make these
determinations and the training and
expertise to provide the quality of
64 PRN medications are medications that are given
as needed when certain circumstance occur. Those
circumstances would be indicated in the
medication order. For example, a PRN medication
could be given when a resident has a temperature
over a certain degree or for agitation. In a LTC
facility, it would generally be a licensed nurse who
makes the determination to give a PRN medication.
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nursing care residents require in such
circumstances.
Comment: Some commenters not only
supported the proposal for an RN 24/7
but also recommended that the
requirement be strengthened. Many
commenters were concerned about LTC
facilities only being required to have the
RN ‘‘available’’ to provide direct
resident care and not requiring the RN
to be ‘‘providing’’ direct resident care.
These commenters recommended that
the requirement be strengthened to
require that the RN be providing direct
resident care as that is the level of care
that should be provided in a LTC
facility. These commenters agreed with
the 2022 Nursing Home Study that more
RN staff should result in fewer
deficiencies in care; however, they also
insist that the RN cannot be simply
‘‘present’’ in the LTC facility. They
contend that while having an RN onsite
24/7 in LTC facilities is important for
resident care quality and safety, it is the
active contributions and clinical
expertise of RNs that ensures the
delivery of skilled quality care for
residents. Other commenters
recommended that there be more than
one RN onsite. For example, some
commenters recommended one RN for
every 100 residents.
Response: We appreciate the
commenters support for the 24/7 RN
proposal. Regarding the commenters
that recommended strengthening the
requirement by requiring one RN for
every 100 residents, we do not agree
with those comments. We believe that
having a RN onsite 24/7 to help with
preventable issues and creating a
specific standard to ensure residents
receive on average at least 0.55 hours of
RN care per day is a stronger approach
to improve resident health and safety
than requiring one RN for every 100
residents. We are thus finalizing a total
nurse staffing requirement of 3.48 HPRD
that must include RN direct care levels
of at least 0.55 HPRD. Although this
does not go as far as requiring direct
care from a 24/7 RN would, it will still
provide for greater required RN direct
care than current standards do. These
requirements are set forth at
§ 483.35(b)(1) as finalized in this rule.
Thus, the RN direct care staff
requirement will be adjusted according
to the number of residents in the
facility. Regarding the commenters who
recommended changing the proposed
requirement that an RN be ‘‘available to
provide direct care,’’ to require the RN
‘‘providing direct resident care’’, we are
not modifying the proposed
requirements to incorporate that
comment. The total nurse staffing
requirement finalized in this rule
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contains an RN direct care level of at
least 0.55 HPRD. This requirement along
with the requirement for a 24/7 RN
available to provide direct resident care
should provide the high-quality, safe
care that residents need.
Comment: In the proposed rule, we
specifically solicited comments on
whether the DON should be counted
towards the 24/7 RN requirement or
should the DON only count under
specific circumstances. Commenters
were divided on this question. Many
commenters opposed the DON being
counted towards the 24/7 RN
requirement, as well as any other RN
that is assigned to administrative duties.
They contended that only RNs
providing direct resident care should be
counted towards the requirement. Still
other commenters thought the DON
should be included since they would be
onsite at the LTC facility and could
provide direct resident care, if needed.
However, other commenters did not
oppose including the DON in the
requirement, especially if the resident
census was below 30 residents.
Response: As discussed in the
previous comment, we are finalizing the
24/7 RN requirement to require that the
RN is available to provide direct
resident care as proposed. Therefore, if
the DON is a RN and is available to
provide direct resident care, then the
DON will count towards this
requirement. We are not establishing a
specific resident census for this
requirement because we have no
reliable evidence upon which to base a
specific number of residents for this
requirement.
Comment: Many commenters were
concerned about the statutory waivers
cited in the proposed rule and CMS’s
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assertion that the statutory waiver
would apply to the proposed 24/7 RN
requirement. They contended that these
waivers diminished the requirement for
a 24/7 RN and would result in a reduced
quality of care for residents. Other
commenters also noted that these
statutory waivers were difficult to
operationalize and were rarely granted.
Specifically, commenters noted that the
requirements for the statutory waiver
were difficult for many LTC facilities to
meet, such as the requirement for SNFs
to be in a rural area. Some commenters
thought these waivers could actually
undermine the 24/7 RN requirement by
enabling too many LTC facilities to
avoid the requirement. At least one
commenter recommended that LTC
facilities use the same exemption
criteria proposed as § 483.35(g)
(finalized at § 483.35(h) as discussed in
this rule), which would be applied to
hardship exemptions for the minimum
nurse HPRD standards set forth at
proposed § 483.35(b)(1) (finalized at
§ 483.35(c)(1) as discussed in this rule).
However, other commenters
contended that it was unnecessary for
the RN to even be on site at the LTC
facility 24/7. These commenters stated
that part of the 24 hours could be
satisfied through some type of ‘‘virtual’’
presence by an RN. Commenters
suggested that an RN could be available
by phone, internet, or be able to get to
the LTC facility within a certain amount
of time, such as 30 minutes.
Commenters stated that a one-size-fitsall approach was unnecessary, and
requirements should be based on
resident acuity. Commenters insisted
that by allowing for a part of the 24/7
RN coverage to be virtual, each LTC
facility could determine if their resident
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40897
population needs an RN on site 24/7 or
whether the RN could be virtually
present during a part of the day. Some
commenters specifically recommended
that an RN could virtually support LPNs
on the evening and night shifts. There
were also commenters who noted that
while there was a process for obtaining
a hardship exemption to the minimum
nurse staffing requirement, there was no
waiver or exemption process for the 24/
7 RN requirement.
Response: The current requirement is
that the LTC facility provide 24 hours of
licensed nursing services (RN or LPN/
LVN) and RN services 7 days a week for
8 consecutive hours per day as set forth
at existing sections § 483.35(a) and (b).
There are two waivers discussed in
§ 483.35 of the LTC participation
requirements that are set forth in
paragraphs (e) and (f) (redesignated in
this final rule as paragraphs (f) and (g),
respectively). The requirements for
these waivers come directly from the
statute, specifically section
1819(b)(4)(C)(ii) and 1919(b)(4)(C)(ii) of
the Act, respectively. Since these two
waivers are statutory, the waivers can
only be removed or modified in detail
by legislation. Thus, the waivers in
existing § 435.35(e) and (f) (redesignated
as paragraphs (f) and (g) in this final
rule) will not be changed except for
conforming changes, which we will
discuss further, to ensure that the
statutory waivers do not conflict with
the regulatory flexibilities finalized in
this final rule at § 483.35(h). To assist
readers and provide clarity, table 2
provides an overview of the differing
requirements for the statutory waiver at
§ 483.35(e) and (f) (finalized as
paragraphs (f) and (g) in this rule).
BILLING CODE 4120–01–P
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10MYR3
be modified by legislation, we agree
with the commenters that LTC facilities
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While the details of the statutory
waivers, described in table 2, can only
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Section 1819(b)(4)(C)(ii) of the Act
§ 483.35(e) Nursing services. Nursing facilities: Waiver of
requirement to provide licensed nurses on a 24-hour basis (final
rule redesignates this paragraph as paragraph (/)))
§ 483.35(±) Nursing services. SNFs: Waiver of the requirement to provide
services of a registered nurse for more than 40 hours a week. (final rule
redesignates this paragraph as (g) and revises title)
Regulatory
Citation and
requirements
for
participation
that can be
waived
The State can waive the following requirements:
The Secretm.:y can waive the following requirement:
1. The facility must provide services by sufficient numbers of
each of the following types of personnel on a 24-hour basis to
provide nursing care to all residents in accordance with resident
care plans.
1. The facility must use the services of a registered nurse for at least 8
consecutive hours a day, 7 days a week (final rule revises to must have a
RN onsite 24 hours per day, for 7 days a week).
2. The facility must use the services of a registered nurse for at
least 8 consecutive hours a day, 7 days a week (final rule
revises to must have a RN onsite 2 4 hours per day, for 7 days a
week).
Criteria that
must be met
to be eligible
for the
statutory
waiver
1. The facility must demonstrate to the satisfaction of the State
that the facility has been unable, despite diligent efforts
(including offering wages at the community prevailing rate for
nursing facilities), to recruit appropriate personnel.
2. The State determines that a waiver of the requirement will
not endanger the health or safety of individuals staying in the
facility.
1. The facility is located in a rural area and the supply of skilled nursing
facility services in the area is not sufficient to meet the needs of individuals
residing in the area.
2. The facility has one full-time registered nurse who is regularly on duty
at the facility 40 hours a week.
3. The facility either-
3. The State finds that, for any periods in which licensed
nursing services are not available, a registered nurse or a
physician is obligated to respond immediately to telephone
calls from the facility.
•
Has only patients whose physicians have indicated (through
physicians' orders or admission notes) that they do not require the
services of a registered nurse or a physician for a 48-hours period,
OR
4. A waiver is subject to annual State review.
•
Has made arrangements for a registered nurse or a physician to
spend time at the facility, as determined necessary by the
physician, to provide necessary skilled nursing services on days
when the regular full-time registered nurse is not on duty;
5. In granting or renewing a waiver, a facility may be required
by the State to use other qualified, licensed personnel.
6. The State agency granting a waiver of such requirements
provides notice of the waiver to the Office of the State LongTerm Care Ombudsman (established under section 712 of the
4. The Secretary provides notice of the waiver to the Office of the State
Long-Term Care Ombudsman (established under section 712 of the Older
Americans Act of 1965) and the protection and advocacy system in the
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Jkt 262001
Section 1919(b)(4)(C)(ii) of the Act
Statutory
Citation
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Table 2: Requirements for the LTC Staffing Statutory Waivers by Facility Type
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need to have some flexibility with the
24/7 RN requirements. We are
especially concerned about those LTC
facilities that meet the requirements for
hardship exemptions. If a LTC facility is
unable to meet the minimum staffing
requirements as set forth at § 483.35(b)
(as finalized in this rule), it also might
not be able to comply with the 24/7 RN
requirement because this could be an
indication of the LTC facility’s difficulty
in obtaining staff in general. Conversely,
if a LTC facility does not meet the
requirements for a hardship waiver, it
should be able to comply with the 24/
7 RN requirement by the required
implementation deadlines. Thus, we are
finalizing an additional exemption for
facilities that experience a hardship
complying with the 24/7 RN
requirement. This exemption will be in
addition to the existing statutory waiver
process set forth at § 483.35(e) and (f)
(finalized in this rule as paragraphs (f)
and (g)). Specifically, we are revising
the requirements at proposed
§ 483.35(b) (finalized at § 483.35(c)(1) as
discussed in this rule) to indicate that
facilities must have a RN onsite 24
hours per day, 7 days a week that is
available to provide direct resident care,
except when this requirement is waived
in accordance with the existing
statutory waivers at § 483.35(e) and (f)
(redesignated as paragraphs (f) and (g) as
discussed in this rule) or exempted in
accordance with the criteria for
regulatory flexibilities at § 483.35(h).
Section 483.35(h) specifies that a facility
may qualify for a hardship exemption of
8 hours a day from the 24/7 RN
requirement if the facility is located in
an area where the RN to population
ratio is a minimum of 20 percent below
the national average, as calculated by
CMS, by using data from the Bureau of
Labor Statistics and Census Bureau. The
finalized regulatory flexibilities and
criteria for eligibility at § 483.35(h),
including the basis for why such
eligibilities have been set at current
thresholds, are discussed in detail in the
next section, section II.B.5. of this rule.
We expect that those facilities currently
meeting the 24/7 RN staffing
requirement will continue meeting the
requirement.
Furthermore, we are adding a
requirement to specify that for any
periods when the onsite RN
requirements are exempted in
accordance with the exemption criteria
at § 483.35(h), facilities must have a
registered nurse, nurse practitioner,
physician assistant, or physician
available to respond immediately to
telephone calls from the facility. At
existing § 483.35(e) (finalized at
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§ 483.35(f)) we are modifying the
heading of the paragraph to read
‘‘Nursing facilities: Waiver of
requirement to provide licensed nurses
and a registered nurse on a 24-hour
basis’’. This paragraph applies to NFs
only and the modified heading helps to
clarify those requirements that are
applicable to the waiver set out at
section 1919(b)(4)(C)(ii) of the Act. In
addition, we are modifying the language
at existing § 483.35(f) (finalized at
§ 483.35(g)) to revise the heading of the
paragraph to read ‘‘SNFs: Waiver of the
requirement to provide services of a
registered nurse for at least 112 hours a
week’’. This paragraph would be
applicable to facilities that meet the
statutory qualifications for the waiver
set out at section 1819(b)(4)(C)(ii) of the
Act.
Given that this rule finalizes an
additional regulatory flexibility for
facilities to receive an exemption of 8
hours per day of the 24/7 RN
requirement, we want to clarify that
facilities who may also meet the
requirements for the statutory waivers
as detailed at existing sections
§ 483.35(e) and (f) (finalized as
paragraphs (f) and (g) in this rule) will
still have the ability to choose which
process they want to pursue to achieve
regulatory flexibility from the 24/7 RN
requirement. For example, a SNF may
be exempted from 8 hours per day of the
24/7 RN requirement if they meet the
criteria specified in § 483.35(h). If this
SNF is rurally located, then in
accordance with existing § 483.35(f)
(finalized in this rule at paragraph (g))
this facility may choose to instead
pursue the statutory waiver for SNFs to
achieve greater flexibility from the 24/
7 RN requirement based on their
specific situation and ability to meet the
criteria outlined by the statute for the
waiver rather than pursue the 8 hours
per day exemption provided under new
§ 483.35(h).
Final Rule Action: We are finalizing
with revisions the proposed
requirement for an RN to be onsite 24
hours a day, 7 days a week and available
to provide direct resident care. The RN
can be the DON; however, they must be
available to provide direct resident care.
Also, LTC facilities that qualify for a
hardship exemption to the minimum
nurse staffing requirement set forth at
§ 483.35(b)(1)(i) in accordance with the
criteria outlined at § 483.35(h) (as
finalized in the rule) may also request
an exemption of 8 hours per day of the
24/7 RN requirement. We have added
this as we believe that additional
flexibility is needed for facilities as they
adopt the 24/7 RN requirement. We
have added a requirement at
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40899
§ 483.35(c)(2) to specify that for any
periods when the onsite RN
requirements in are exempted in
accordance with § 483.35(h), facilities
must have a registered nurse, nurse
practitioner, physician assistant, or
physician available to respond
immediately to telephone calls from the
facility. In addition, we are modifying
the language at existing § 483.35(e)
(finalized at § 483.35(f)) to revise the
heading of the paragraph to read
‘‘Nursing facilities: Waiver of
requirement to provide licensed nurses
and a registered nurse on a 24-hour
basis’’. We are also, modifying the
language at existing § 483.35(f)
(finalized at § 483.35(g)) to revise the
heading of the paragraph to read ‘‘SNFs:
Waiver of the requirement to provide
services of a registered nurse for at least
112 hours a week’’.
5. Hardship Exemptions From the
Minimum Hours per Resident Day
Requirements (§ 483.35(g))
We proposed at new § 483.35(g), that
facilities could be exempted from the
0.55 HPRD of RNs and/or 2.45 HPRD of
NAs requirements if they were found
non-compliant with the HPRD
requirements and met four eligibility
criteria, based on location, good faith
efforts to hire, disclosure of financial
information, and were not excluded
based on the prior year’s citations,
failure to submit data to the PBJ, or
having been designated as a Special
Focus Facility. We stated that
determinations regarding exemptions
would be made during a survey. We also
proposed that facilities could only
receive an exemption from the proposed
minimum HPRD requirements and not
the proposed 24/7 RN requirements. We
noted that a waiver of the proposed 24/
7 RN requirements must be granted in
accordance with the existing statutory
waivers at § 483.35(e) and (f). We further
proposed that the Secretary, through
CMS or the applicable State Agency,
would make the determination about
exemption from the HPRD requirements
and that such exemptions would be in
effect for one year and renewable
annually if facilities continued to meet
the exemption requirements. We
received a large number of comments
that addressed exemptions. Comments
ranged from robust objection to any
exemptions, to support for exemptions
as proposed or in concept, with both
opposing and supporting commenters
recommending a wide variety of specific
changes to revise and improve our
proposal. These comments reflected
disparate and often opposing views on
the provision of exemptions. In addition
to proposing specific exemption criteria,
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we also solicited comment on several
specific questions related to
exemptions.
We discuss and respond to these
comments and responses to our
questions in detail below.
Comment: Many commenters objected
to allowing any exemption from the
HRPD requirements. Some commenters
stated that understaffing results in falls,
injuries, and even death. Some
commenters stated that the proposed
exemptions would normalize
inadequate staffing, depress wages, and
would be dangerous and undermine or
jeopardize the health and safety of
residents. Other commenters stated that
every nursing home resident deserved
high quality care, regardless of their
geographic location or other factors. One
commenter stated that CMS must stop
putting the financial priorities of the
nursing home industry above the basic
needs and dignity of nursing home
residents. Some commenters suggested
that certain facilities, including rural
facilities, should be given special
consideration, while others suggested
that no facility should be given special
consideration. Several commenters
stated that they believed there should be
progressive enforcement of the
requirement, with reduced penalties in
clear instances of a good faith effort to
meet the staffing standards.
Response: We appreciate all of the
commenters’ concerns and suggestions.
Our goal is to promote safe, high-quality
care for all residents. We also recognize
the need to strike an appropriate
balance that considers the current
challenges some LTC facilities are
experiencing, particularly in rural areas.
We have decided to retain the
availability of exemptions under certain
circumstances for select facilities, which
would include some that are rural, after
consideration of the comments,
recognition of both quality of care and
access to care concerns. We note the
continued availability of recourse when
there is a quality of care concern,
including those that may be related to
safety and staffing availability, such as
complaints to survey agencies, QIOs,
and State long-term care ombudsman
programs. Exemptions may remain in
place only until the next standard
survey, and we expect any LTC facility
receiving an exemption to work toward
full compliance with the staffing
standards.
Comment: Some commenters stated
that any exemptions should be limited
in number and frequency and must be
paired with specific elements of
heightened scrutiny and transparency.
Furthermore, the commenters asserted
that the need for such an exemption
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must be compelling. One commenter
stated that only if facilities, at their
current staffing ratios, are performing
well on outcomes such as hospital
readmission rates, nurse turnover,
facility acquired injuries, anti-psychotic
medication use, would there be a logical
justification to give them a waiver.
Commenters also recommended
concrete standards and clear,
measurable, and rigorous criteria for
receiving an exemption. One commenter
recommended that CMS narrowly tailor
the workforce shortage exemption.
Other commenters suggested many
specific changes, such as:
• Capping the number of exemptions
a facility can receive, to avoid facilities
that are perpetually exempted;
• Prohibiting any facility that does
not meet the staffing requirements from
admitting new residents;
• Disqualifying facilities operating
under an exemption from any type of
value-based purchasing initiatives
within either the Medicare or Medicaid
programs;
• Requiring facilities with an
exemption to demonstrate progress on
reducing turnover and increasing wages;
• Appointing an independent entity
to monitor performance of any facility
with an exemption;
• Ensuring transparency around
exemptions through such tools as
prominent display of exemption status
on Nursing Home Compare with a
warning about the possible
consequences of nursing understaffing,
posted notice within the facility, and
specific notice to any individual/family
residing in or seeking admission, as well
as the Long-Term Care Ombudsman
Program;
• Requiring that the facility’s staffing
plans demonstrate consideration of
nationally recognized best practices,
such as PHI’s 5 Pillars of Direct Care Job
Quality; and that the facility provide
evidence related to best practices
beyond offering prevailing wages, such
as enhanced benefits, expanded training
programs, worker surveys to inform
workplace improvements, improved
scheduling policies, participation in job
fairs, and partnerships with schools;
• Requiring ‘‘good faith efforts to hire
and retain staff’’ to include
documentation of recruiting efforts, a
specific method for calculating and
reporting staff turnover, and an explicit
target and plan for reducing turnover,
including regular reporting to CMS;
• Requiring ‘‘documentation of
financial commitment to staffing’’ that
includes investments in recruiting and
retention, and evidence of increased
wages;
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• Requiring an alternate viable plan
for meeting the needs of the residents in
their care, not solely on financial
difficulties;
• Establishing a sunset date for
hardship exemptions; and
• Placing nursing homes granted an
exemption on a ‘do not refer’ list that is
distributed to area hospitals and other
providers.
Response: We thank the commenters
for their suggestions. The exemption
framework provides qualifying LTC
facilities with the opportunity to receive
time-limited flexibility upon completion
of several essential documentation and
transparency requirements. We
considered each option suggested.
While we are not implementing all of
them at this time, we have included
some, including around transparency
and we may consider them in future
rulemaking. In response to the concerns
raised, we have made some revisions.
Specifically, we have removed the
distance criterion and narrowed the
availability of exemptions to those
facilities in staff shortage areas where
the supply of applicable healthcare staff
(RN, NA, or combined licensed nurse,
which includes both RNs and LVN/
LPNs, and nurse aide) is not sufficient
to meet area needs as evidenced by the
applicable provider-population ratio for
nursing workforce that is a minimum of
20 percent below the national average
for the applicable exemption (RN, NA,
or combined licensed nurse and nurse
aide), as calculated by CMS, by using
the Bureau of Labor Statistics and
Census Bureau data. The area is the
geographical area defined as the
metropolitan statistical area (MSA) or
nonmetropolitan statistical area (nonMSA) where the LTC facility is located
using data from the U.S. Bureau of
Labor Statistics (available at https://
www.bls.gov/oes/current/msa_def.htm).
Furthermore, we agree that transparency
to current and potential residents, as
well as the State Long Term Care
Ombudsman Program is a necessary
element. We are therefore adding
transparency requirements in order to
receive an exemption. First, a facility
must post in a prominent, publicly
viewable location in the facility a notice
of the facility’s exemption status, the
extent to which the facility does not
meet the minimum staffing
requirements, and the timeframe during
which the exemption applies. Second, a
facility must provide a similar notice to
each resident or resident representative,
and to each prospective resident or
prospective resident representative, that
includes a statement reminding
residents of their rights to contact
advocacy and oversight entities, as
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provided in the notice provided to them
under § 483.10(g)(4). Finally, the facility
must send a copy of the notice to a
representative of the Office of the State
Long-Term Care Ombudsman.
Exemption information will also be
publicly available on Care Compare. We
considered capping the number of
exemptions or establishing escalating
requirements for subsequent
exemptions, but at this time, find that
the underlying requirements to obtain
an exemption are sufficient to encourage
ongoing good faith efforts to meet the
new requirements, to evaluate facilities
quality of care prior to granting each
exemption, and to ensure that residents
and their representatives are aware of
the exemption status of the facility.
Comment: Many commenters stated
that the proposed exemption process
was unfair and unworkable. Others
described it as not meaningful or too
burdensome and limited to be useful.
Other commenters supported the
proposed process. One commenter
noted that the proposed staggered
implementation dates and exemption
criteria reflect a nuanced understanding
of the challenges faced by LTC facilities
and called the exemption criteria
reasonable. Another stated that the
exemption process would only postpone
the challenges of meeting the minimum
staffing standards. Some stated that
small, rural facilities most in need of an
exemption would not be able to meet
the criteria to qualify while others
suggested that few facilities at all would
be able to qualify, stating that the
criteria will be difficult if not
impossible for most nursing homes to
meet in all but the extreme
circumstances. Some commenters urged
CMS to streamline the exemption
requirements to offer greater flexibility.
Some commenters stated that the
process should not be punitive, but
should help facilities comply with the
rule or that the process should protect
facilities from monetary penalties and
have checks and balances to ensure
facilities are not punished for not
meeting unattainable goals. One
commenter recommended that CMS
create a waiver process that is available
to all facilities without exclusions; does
not entail citation; is attainable by any
facility that is in need and that is
making good faith efforts (reasonable
process); and includes support from a
QIO or another party to assist facilities
in securing support resources to meet
applicable needs. Some commenters
stated that disparities between criteria
for exemptions or waivers should be
minimized and should be ‘‘somewhat
uniform’’ since they relate to the issue
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of insufficient workforce. One
commenter stated that any exemption
should be based on the availability of
workers, compensation offered, and
working conditions. Other commenters
recommended adding an exemption for
unforeseen circumstances, temporary
weather-related staffing reductions, or
exigent circumstances. One commenter
noted that their State considers
extraordinary circumstances such as
natural disaster, catastrophic event or a
national or State-declared emergency;
location in a region that the health
commissioner has declared is
experiencing an acute labor shortage;
and a verifiable union dispute as
mitigating factors for understaffing.
Another recommended that CMS create
a protocol for State agencies to
implement to ensure consistency and
provided details of how their State
implemented exemptions to State
requirements. Finally, one commenter
stated that they were pleased that
compliance with the 24/7 RN
requirement did not imply compliance
with the minimum staffing HPRD
standard and that the hardship
exemption process cannot be used to
circumvent that [24/7 RN] requirement.
Another stated that adding additional
requirements that already have a
foundation in regulations is illogical
and risks further erosion of an already
fragile system.
Response: We appreciate the
comments in support of the exemption
process and have considered the
concerns raised about it. We have
determined, in the interest of resident
health and safety, that it is not
acceptable to significantly expand the
exemption process. However, based on
the feedback from commenters and
concerns raised regarding access to care,
as discussed previously we have
modified our proposal to allow facilities
that can demonstrate a limited supply of
RNs (based on a provider-to-population
ratio 20 percent below the national
average) and meet the exemption
criteria to receive an exemption from 8
hours per day of the 24/7 RN
requirement. In keeping with the
comments regarding uniformity and
exemptions based on worker
availability, we are also finalizing, as
part of the exemption process, a
comparable exemption criterion for
determining the workforce
unavailability criterion for the total
nurse staffing 3.48 HPRD standard that
we are finalizing. Specifically, we will
incorporate a provider to population
ratio for combined licensed nurse and
nurse aide workforce into the exemption
requirements where such a ratio must be
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40901
at least a minimum of 20 percent below
the national average. As explained in
the proposed rule (88 FR 61378), to
calculate whether a LTC facility is in an
area with a shortage of RNs or NAs, we
first use the Care Compare data to
identify the State and county where
each LTC facility is located. We then
combine these data with information
from the U.S. Bureau of Labor Statistics
(available at https://www.bls.gov/oes/ on
the counties in each MSA and non-MSA
to identify the MSA or non-MSA where
each LTC facility is located. Next, we
identify the total number of RNs and
NAs in each MSA and non-MSA using
the Bureau of Labor Statistic’s
Occupational Employment and Wage
Statistics Query System (available at
https://data.bls.gov/oes/#/home).
Afterwards, we calculate the population
for each MSA or non-MSA using
population estimates from the United
States Census Bureau by summing the
population for all counties in the MSA
or non-MSA (available at https://
www.census.gov/data/tables/timeseries/demo/popest/2020s-countiestotal.html#v2022). Finally, we calculate
whether the LTC facility is located in an
MSA or a non-MSA with a medium or
low provider-to-population ratio by
comparing the area’s provider-topopulation ratio to the average providerto-population ratio for the United States.
We note that facilities that do not
receive an exemption will have the
opportunities afforded by the
enforcement process to address any
noncompliance deficiency citations,
such as informal dispute resolution
processes and administrative and
judicial appeals. We have determined
that this is the appropriate set of criteria
to use for exemptions from both the 24/
7 RN requirement and the 3.48 total
staffing standard as it is appropriate to
apply the same criteria for workforce
insufficiency (20 percent below the
national average for the applicable staff
category) across all exemptions.
Comment: Many commenters
suggested that facilities that receive an
exemption should have to demonstrate
progress on staffing related issues. For
example, one commenter recommended
we add a provision to require the
facility to increase retention to 75
percent or higher if the facility will
utilize an exemption, as there are many
methods that can be utilized to increase
staff retention, including flexible work
schedules, bonuses, well-trained
managers/supervisors, incentive
programs and much more. This
commenter stated that reducing
turnover rates will significantly increase
resident care/safety as well as reduce
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the recruitment burden on managers.
Several commenters mentioned
turnover rates in the context of retention
and recruiting, and one suggested that,
for RNs and/or CNAs and other nursing
staff, if the turnover rate is higher than
35 percent, a facility should not meet
the good faith effort requirement for an
exemption. Another commenter
suggested adding a provision that would
bar nursing homes with a turnover rate
higher than the State median from
receiving hardship exemptions.
Response: We thank commenters for
these suggestions. At this time, we are
not adding additional requirements
related to turnover to qualify for an
exemption. The facility’s staffing plan in
accordance with § 483.71(b)(4),
however, requires the facility to develop
and maintain a staffing plan to
maximize recruitment and retention of
direct care staff, and is considered part
of a demonstration of a good faith effort
to hire. Retention and turnover may
thus be considered in evaluating
whether a facility is complying with its
staffing plan in seeking exemption. We
also note that information on turnover is
publicly available on Care Compare. In
2022, CMS began posting levels of
weekend staffing and rates of staff
turnover and using these metrics in the
Five Star Quality Rating System to help
provide more useful information to
consumers. In addition, CMS is
adopting the Nursing Staff Turnover
Measure for the SNF VBP program
beginning with the FY 2026 program
year. This is a structural measure that
has been collected and publicly
reported on Care Compare and assesses
the stability of the staffing within an
SNF using nursing staff turnover. This
is part of the Administration’s focus to
ensure adequate staffing in long-term
care settings and delivers on a
commitment included in the President’s
Executive Order 14070, Increasing
Access to High-Quality Care and
Supporting Caregivers. Facilities would
begin reporting for this measure in FY
2024, with payment effects beginning in
FY 2026. While we are not adopting
these suggestions at this time, we may
consider them for future rulemaking.
Comment: Several commenters
objected to the demonstration of
financial commitment as an exemption
criterion. Some commenters felt that
this criterion was duplicative of the
information that would be provided in
the good faith effort to hire criterion.
One noted that the framework for
exemptions was likely to encourage the
use of temporary staffing and that, given
the cost of temporary labor, this may
create a wrong impression while
accelerating predatory temporary labor
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pricing. Another comment
recommended requiring facilities that
intend to utilize a staffing exemption
provide full disclosure of all financial
documents, including ownership,
related parties, profits, tax and corporate
filings, audits, and financial statements
and requiring that these documents be
made available within 10 days of the
request to residents, resident
responsible parties, executors/trustees
of resident estates, advocates, and
regulatory agencies. One commenter
suggested that in order to qualify for an
exemption, a facility must demonstrate
that its owners and management are not
profiting from the nursing home or any
company that is paid by the facility.
Another stated that any exemption
related to claimed financial constraints
must be considered with far more robust
transparency requirements. One
commenter stated that the requirement
is vague. In response to our question
regarding a spending threshold, several
commenters recommended that CMS
establish that facilities must spend 80
percent of revenue on direct care
services, similar to the proposed CMS
requirements for HCBS services 65 and
requirements in four States (New Jersey,
New York, Massachusetts, and
Pennsylvania). Another commenter
recommended 75 percent as a threshold,
with independent confirmation. One
commenter stated that CMS must either
conduct or direct the State survey
agency to conduct an audit of the
nursing home’s finances.
Response: We thank commenters for
these suggestions. We have considered
both the comments supporting and the
comments objecting to the financial
commitment criterion. We recognize
that the requirement we are finalizing
only requires the facility to document
and provide information when needed
to receive an exemption. We believe that
the financial commitment criterion will
lead facilities to evaluate their financial
commitment to staffing while leading
CMS to better understand facility
investment in staffing and the
implications of expanding the
requirement by establishing a threshold,
requiring additional documentation, or
other modifications. While we are not
adopting these suggestions at this time,
we will consider them for future
rulemaking.
Comment: Some commenters
specifically objected to the exemption
determination being made after a facility
is surveyed and determined to be out of
compliance with the HRPD staffing
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requirement. Several commenters
indicated that being cited and fined
before getting an exemption was
unreasonable. One suggested that
extensions of the exemption period
should be automatic ‘‘if conditions
persist.’’ Many commenters felt that
facilities should proactively be able to
apply for an exemption through the
submission of documentation. One
commenter was concerned that the
process requires facilities to open
themselves up to additional scrutiny to
qualify and that this could mean a
provider opens themselves up to
exclusion if a surveyor determines their
insufficient staffing has resulted in harm
or inaccurately cites the PBJ tag.
Another commenter stated that facilities
are already heavily penalized for not
submitting PBJ data, and this exclusion
should be limited to allow for a
temporary lapse, especially when it
results from emergent reasons, such as
a disaster that the facility didn’t report
or when a facility is unable to submit
data, despite trying, due to technical
portal issues. One commenter noted that
this would increase the workload on
already over-burdened and underfunded
State survey agencies. Others noted that
States already have significant backlogs
of surveys and facilities should not be
penalized for that. One commenter
recommended that CMS develop a
streamlined process to apply for an
exemption without requiring an onsite
survey and noted that the exemption
request process must be simple and not
burdensome.
Response: We thank commenters for
their feedback. We believe that the
exemption criteria recognizes that some
facilities may have difficulty meeting
the new requirements and therefore may
obtain an exemption if they meet the
qualifications. However, this is balanced
by the need to ensure residents’ health
and safety. With respect to a survey
preceding the granting of an exemption,
we note that facilities cannot request,
and a State would not conduct, a survey
specifically for the purpose of granting
an exemption, but rather that facilities
would be evaluated during a survey,
such as the standard recertification
survey, to determine if they were
eligible for an exemption. A survey
preceding any determination regarding
an exemption would identify any other
deficiencies of the facility, including
those that could disqualify a facility
from receiving an exemption and help
ensure that safety and quality of care is
maintained. As mentioned previously,
we will publish more details on how
compliance will be assessed after
publication of this final rule in advance
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of each implementation date for the
different components of the rule. We
intend to use the traditional process of
communication of information via CMS
QSO memoranda and publication of
information in the State Operations
Manual.
Comment: Some commenters
recommended that specific types of LTC
facilities be exempt from the HRPD
requirements. One commenter
recommended that Life Plan
Communities (similar to Continuing
Care Retirement Communities) be
exempt. Some commenters suggested
that all Tribal facilities be exempt from
the HRPD requirements. Other
commenters suggested that some
specialized facilities (subacute units,
hospital-based SNFs, and distinct part
units of hospitals, any facility in an
auto-HPSA) also be exempt from the
HRPD requirements. One commenter
recommended exempting nursing
homes in States that have existing
staffing ratio requirements for licensure.
Others suggested that facilities with
high quality measures at their current
staffing levels be automatically
exempted or be qualified to request an
exemption. Some commenters said that
they found the lack of flexibility,
waiver, or leniency for communities
taking good faith efforts to comply
unfair. Finally, one commenter
suggested that all rural facilities should
be exempt.
Response: We thank commenters for
these suggestions. As noted earlier, our
goal is to promote safe, high-quality care
for all residents. We also recognize the
need to strike an appropriate balance
that considers the current challenges
some LTC facilities are experiencing,
particularly in rural areas. We
considered establishing categories for
blanket exemptions, but are not
adopting any at this time. Blanket
exemptions for an entire category of
facilities lacks the facility-specific
assessment required under our proposal.
In particular, we are finalizing a process
under which any facility granted an
exemption must have a preceding
survey to determine its compliance with
the requirements. However, such
compliance determinations would not
be conducted if we were to establish
blanket exemptions. At this time, we
want to ensure we are aware of any
quality of care concerns at the
individual facility level prior to granting
an exemption. As we gain insight into
facility compliance with the staffing
minimums and in the application of the
exemption process, we can consider
suggestions to tighten the exemption
process in future rulemaking. We note
that hospital providers of long-term care
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services (swing-beds) are not subject to
the Nursing Services requirements
under § 483.35, but instead are subject
to the hospital conditions of
participation, including staffing
(§ 482.23), as well as specific provisions
of 42 CFR part 483 identified in
§ 482.58.
Comment: Some commenters objected
to using location as an exemption
criterion, while others supported a
location criterion. Many responded to
our question regarding the ‘‘right
distance’’ from another facility to
warrant a hardship exemption, often
suggesting an alternative or stating that
mileage is not an indicator of hardship
and objecting to any mileage-based
criterion. One commenter stated that the
mileage-based criterion was arbitrarily
set and did not account for multiple
facilities in the same area needing to
apply for an exemption. Commenters
noted a variety of BLS limitations,
geographic features, and transit system
considerations that made the location
criteria problematic. Several
commenters suggested that a provider to
population ratio does not reflect the true
availability of the workforce, and that
this must be considered when
determining eligibility for waivers and
exemptions. One commenter supported
the location criterion as proposed but
wanted it to also be applied to the
statutory waiver for RNs/licensed
nurses; other commenters voiced similar
concerns about the existing RN/licensed
nurse waiver. Some commenters
suggested removing the provider to
population ratio, and reducing the
mileage criteria to 10 or 15 miles. One
commenter noted that the presence of a
CAH near an LTC facility also impacted
staff availability, even in the face of
collaborative efforts. One commenter
also suggested the mileage-based
criterion be clarified for Tribal facilities
to state that for Tribal facilities, it must
be another Tribal facility within 20
miles. A different commenter suggested
the mileage criterion should be 50
miles, stating that the average daily
commute in the United States is 37
miles one-way (per U.S. Department of
Transportation) and that it is not
appropriate to jeopardize the health and
welfare of a nursing facility resident
with a staffing exemption for 20 miles
when that is 17 miles less than the
average commute of the staff who work
at care facilities. Fifty miles was also
suggested by another commenter who
also felt the provider to population ratio
should be changed to a more stringent
50 percent below the national average.
Another supported 40 percent below the
national average as the requirement.
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Other commenters stated HPSA data is
not a good criterion to determine
exemption status, as the data only
shows how many licensed nurses are in
an area and does not consider how
many of those nurses are willing to
work in an LTC facility and that
availability should take into
consideration competition from other
types of providers. One commenter
pointed out problems with urban/rural
definitions and further encouraged
including urban facilities in eligibility
for exemptions. Another commenter
stated that the proposed method to
determine a workforce shortage area is
unworkable and inaccurate, because it is
based on an already depressed national
average. One commenter who objected
to any exemptions stated that every
nursing home resident deserved highquality care, regardless of their
geographic location or other factors.
Many commenters who supported the
need for staffing requirements also
objected to exemptions, noting that all
residents, regardless of zip code, are
entitled to appropriate professional
nursing care. One commenter
recommended re-evaluating these
criteria every six months and one year
after implementation and annually.
Response: We thank commenters for
these suggestions. We have considered
the many perspectives and potential
alternatives presented. Given that there
was not a public consensus on the
appropriate distance and considering
the general opposition received in
establishing this specific criterion, we
have revised our proposal. We are only
finalizing the applicable providerpopulation ratio for nursing workforce
(RN, NA, or combined licensed nurse
and nurse aide) in the facility area as a
location criterion, removing the
additional mileage-based criterion. As a
threshold for determining a workforce
shortage, given concerns raised about
workforce unavailability, and in light of
eliminating the distance criterion, we
concluded that finalizing the moderate
standard is appropriate. Therefore, we
are finalizing that the providerpopulation ratio must be a minimum of
20 percent below the national average,
as calculated by CMS, by using the
Bureau of Labor Statistics and Census
Bureau data.
Comment: One commenter objected to
the use of the term ‘‘good faith effort’’
as too subjective and recommended that
any term used must be objectively
measurable. Several commenters were
concerned with the term ‘prevailing
wage’ and one suggested CMS should
define the term ‘‘prevailing wage’’ in a
manner that is more consistent with its
use elsewhere in Federal law and
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regulations. This commenter
recommended looking to collectively
bargained wage rates as a source of data
on competitive wage levels, counting
benefits as well as wages in the
determination, and taking into account
wage levels for jobs in other industries
with similar entry requirements and for
nursing positions in hospitals, staffing
agencies, and other settings in
determining the prevailing wage.
Response: We appreciate these
comments and concerns. After
considering all of the information and
suggestions presented, we are finalizing
the proposal regarding ‘‘good faith
efforts’’ and ‘‘prevailing wages’’ as
published. The language about
prevailing wages is consistent with the
statutory language in section
1919(b)(4)(C)(ii) of the Act in
establishing requirements for facility
waivers, which states that ‘the facility
demonstrates to the satisfaction of the
State that the facility has been unable,
despite diligent efforts (including
offering wages at the community
prevailing rate for nursing facilities), to
recruit appropriate personnel,’
Therefore, we believe that the language
used is appropriate. However, while we
are not adopting these suggestions at
this time, we may consider them for
future rulemaking.
Comment: In response to CMS’s
question about additional hardships that
CMS should consider in providing
exemptions, some commenters
supported adding financial difficulties/
constraints. Commenters noted that
many facilities receive most of their
revenue from Medicaid, which
commenters characterized as inadequate
in many States to cover the daily costs
of care for the resident. According to
commenters, these facilities would not
be able to afford the increased staffing
requirements and would most likely
reduce the number of beds, lower the
number of Medicaid residents they
admit, or close, leaving many residents
without housing because hospitals and
other high-quality facilities may not
admit residents who pose a high risk for
negative outcomes. A commenter
suggested that CMS provide exemptions
based on financial hardship such as
changes in financial performance as it
relates to provision of care and services
to residents, including financial
exemptions based on customary
accounting measurements such as
changes in operating income, variances
versus annual budget or prior year
performance, and changes in cash flow.
Others objected to a hardship exemption
based on the financial condition of the
provider. One commenter stated that we
do not allow car manufacturers in
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financial distress to produce vehicles
without seatbelts or with less effective
crumple zones in front-end bumpers; we
do not allow airlines in financial
distress to fly without stewards or
qualified pilots and that adequate
staffing should be a core element of any
nursing home’s financial plans rather
than an extra for those facilities that can
afford it.
Response: We thank commenters for
their concerns and suggestions. We have
considered all of the information
submitted and, given the competing
nature of those comments and
information, it would be challenging to
define exactly what constitutes a
financial challenge. Therefore, we are
not at this time including an exemption
criterion based on financial need but are
maintaining a criterion based on a
provider to population ratio. We note
that facilities will be required to
demonstrate through documentation the
amount of financial resources that the
facility expends on nurse staffing
relative to revenue prior to being
granted an exemption. While we are not
adopting these suggestions at this time,
we may consider them for future
rulemaking.
Comment: Some commenters objected
to the exclusion criterion for
exemptions, either suggesting less
restrictive or more restrictive exclusion
criteria. A commenter stated that CMS
should remove all the proposed
exclusion criteria because all facilities
should be afforded an opportunity for
an exemption. Another commenter
stated that facilities should not be
required to be cited for staffing
noncompliance before being eligible for
an exemption and that facilities should
be eligible to apply for an exemption
based on the workforce supply and the
facility’s good-faith efforts to hire and
retain staff—no exceptions. Some
commenters supported the exclusion
criteria and one commended CMS for
not considering HPRD exemptions for
providers with a history of staffing
concerns, poor care delivery, or harm or
abuse to residents to whom they are
entrusted to provide care. In response to
our question about additional
exclusions, some commenters felt CMS
should expand exclusions to include
Special Focus Facility Candidates (not
just SFFs) and perennial 1-star rated
facilities. Another suggested expanding
the criteria that makes a facility
ineligible for an exemption to include
facilities that have recently been cited
for failing to meet staffing standards
and/or abuse or neglect of residents. A
commenter suggested that CMS give
States the option to tailor the exemption
process to align with their existing
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frameworks if those States have existing
staffing standards and exemption.
Another asked CMS to clearly indicate
that the final rule will not preempt any
higher State standards or State
consumer protection and Medicaid
Fraud Control Unit’s (‘‘MFCUs’’) efforts
related to staffing or quality of nursing
care in LTC facilities.
Response: CMS has considered these
suggestions, balanced these noted
concerns, and determined that, at this
time, we will finalize our proposed
exclusion criteria without modification.
We note that it is a long-standing
requirement that all facilities must
comply with both State and Federal
standards, and therefore, would be held
to any higher standards imposed by a
State.
Comment: One commenter
specifically supported the 1-year time
frame for exemptions. Many
commenters noted that there are not
enough surveyors or that surveys do not
occur exactly 1 year apart.
Response: We thank commenters for
their support and for voicing their
concerns about the timing of surveys. In
response, we are revising the timeframe
for exemptions under § 483.35(h) from 1
year, to the next standard recertification
survey. Thus, no matter when the
exemption is initially approved
following a survey, it is in effect until
the next standard survey, unless it is
removed as a result of a facility falling
into the exclusion category. The
exemption can be removed any time a
facility develops any one of the
exclusions. Waivers under §§ 483.35(f)
(Medicaid nursing facilities) and
483.35(g) (Medicare skilled nursing
facilities) are subject to annual review or
renewal, respectively, pursuant to the
waiver language set out in the Social
Security Act.
Final Rule Action: After consideration
of the comments, we received on the
proposed rule, we are finalizing our
proposal for hardship exemptions to the
HRPD requirements with the following
modifications:
• We have redesignated the proposed
hardship exemption from the minimum
hours per day requirements at
§ 483.35(g) as new paragraph (h) in this
final rule and revised the heading to
also include a hardship exemption from
the ‘‘registered nurse onsite 24 hours
per day, for 7 days a week
requirements’’.
• We have revised the location
criteria at newly redesignated
§ 483.35(h)(1) (proposed § 483.35 (g)(1))
to eliminate the 20 mile criterion and
remove all references to a 40 percent
below national average provider-topopulation ratio. We are finalizing at
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newly redesignated § 483.35 (h)(1)
(proposed § 483.35 (g)(1)) the
requirement that the facility be located
in an area where the supply of
applicable healthcare staff (RN, or NA,
or total nurse staffing) is not sufficient
to meet area needs as evidenced by the
applicable provider-to-population ratio
for nursing workforce(RN, NA, or
combined licensed nurse and nurse
aide) that is a minimum of 20 percent
below the national average, as
calculated by CMS, by using the Bureau
of Labor Statistics and Census Bureau
data.
• We have modified the requirements
at § 483.35(h)(1) to specify that a facility
can receive an exemption from one, two,
or all three of the following
requirements, as follows:
(1) The facility may receive an
exemption from the total nurse staffing
requirement of 3.48 hours per resident
day at § 483.35(b)(1) if the combined
licensed nurse, which includes both
RNs and LVN/LPNs, and nurse aide to
population ratio in the area is a
minimum of 20 percent below the
national average.
(2) The facility may receive an
exemption from the RN 0.55 hours per
resident day requirement
(§ 483.35(b)(1)(i)) and an exemption of 8
hours a day from the RN on site 24
hours per day, for 7 days a week
requirement (§ 483.35(c)(1)) if the RN to
population ratio in the area is a
minimum of 20 percent below the
national average.
(3) The facility may receive an
exemption from the NA 2.45 hours per
resident day requirement at
§ 483.35(b)(1)(ii) if the NA to population
ratio in the area is a minimum of 20
percent below the national average.
• We have added new requirements
at § 483.35(h)(4), Disclosure of
exemption status, to require that the
facility:
(1) Posts, in a prominent location in
the facility, and in a form and manner
accessible and understandable to
residents, and resident representatives,
a notice of the facility’s exemption
status, the extent to which the facility
does not meet the minimum staffing
requirements, and the timeframe during
which the exemption applies; and
(2) Provides to each resident or
resident representative, and to each
prospective resident or resident
representative, a notice of the facility’s
exemption status, including the extent
to which the facility does not meet the
staffing requirements, the timeframe
during which the exemption applies,
and a statement reminding residents of
their rights to contact advocacy and
oversight entities, as provided in the
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notice provided to them at
§ 483.10(g)(4); and
(3) Sends a copy of the notice to a
representative of the Office of the State
Long-Term Care Ombudsman.
• We are not finalizing paragraph
(g)(5)(iv) due to changes made to
exemptions for the 24/7 RN
requirement.
• We are finalizing, as proposed,
requirements for good faith efforts to
hire (§ 483.35(h)(2)) and demonstrated
financial commitment (§ 483.35(h)(3)).
• We renumbered proposed
paragraphs (g)(4) through (6) as
paragraphs (h)(5) through (7) in the
section accordingly.
• We have revised paragraph (h)(7) to
provide that the term for a hardship
exemption under § 483.35(h) is from
grant of exemption until the next
standard recertification survey, unless
the facility becomes an Special Focus
Facility, or is cited for widespread
insufficient staffing with resultant
resident actual harm or a pattern of
insufficient staffing with resultant
resident actual harm, is or cited at the
immediate jeopardy level of severity
with respect to insufficient staffing as
determined by CMS, or fails to submit
Payroll Based Journal data in
accordance with § 483.70(p). A hardship
exemption may be extended on each
standard recertification survey, after the
initial period, if the facility continues to
meet the exemption criteria in
§ 483.35(h)(1) through (5), as
determined by the Secretary.
6. Facility Assessment (Proposed
§ 483.71)
Facility assessments play an
important role in ensuring that LTC
facilities develop thoughtful, informed
staffing plans to meet the needs of their
specific residents based on case mix and
other factors. The current requirements
for the facility assessment are set forth
at § 483.70(e) and require each LTC
facility to conduct and document a
facility-wide assessment to determine
what resources are necessary to care for
its resident population competently
during both day-to-day operations and
emergencies. It must be reviewed and
updated annually, as necessary, and
whenever the facility plans for or has
any change in its facility or population
that would require a substantial change
to any part of the assessment. The
assessment must address or include
evaluation of the resident population,
the facility’s resources, and a facilitybased and community-based risk
assessment that utilizes the all-hazards
approach. For the reasons set forth in
the proposed rule, we proposed to
redesignate (that is, relocate or move)
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40905
the existing requirements for the facility
assessment to its own standalone
section from § 483.70(e) to proposed
§ 483.71. We also proposed technical
changes throughout the CFR to replace
references to § 483.70(e) with § 483.71
based on this proposed change. We also
proposed technical changes throughout
the CFR to replace references to
§ 483.70(e) with § 483.71 based on this
proposed change. For organizational
purposes, we proposed to redesignate
the stem statement for current
§ 483.70(e) to the stem statement for
proposed § 483.71 and existing
§ 483.70(e)(1) through (3). We proposed
to redesignate § 483.70(e)(1) through (3)
as proposed § 483.71(a)(1) through (3),
respectively.
At new § 483.71(a)(1)(ii), we proposed
to clarify that facilities would have to
address in the facility assessment details
of its resident population, including the
care required by the resident
population, using evidence-based, data
driven methods that consider the types
of diseases, conditions, physical and
behavioral health issues, cognitive
disabilities, overall acuity, and other
pertinent facts that are present within
that population, consistent with and
informed by individual resident
assessments as required under existing
§ 483.20, ‘‘Resident Assessment.’’
Specifically, we proposed to revise this
paragraph by specifying the ‘‘use of
evidence-based, data driven methods’’
and create a link to the requirements for
the resident assessment. Facilities are
expected to update their facility
assessment as needed, no less than
annually, using evidence-based, datadriven methods, that consider the needs
of their residents and the competencies
of their staff.
We also proposed to revise this
paragraph to add ‘‘behavioral health
issues’’ to clarify that LTC facilities
must consider their residents’ physical
and behavioral health issues. At new
§ 483.71(a)(1)(iii), we proposed to add
‘‘and skill sets’’ so the requirement
reads: ‘‘The staff competencies and skill
sets that are necessary to provide the
level and types of care needed for the
resident population.’’ At new
§ 483.71(a)(3), we proposed to add a
cross-reference to the existing
requirements for facilities to conduct a
facility and community-based risk
assessment as part of their emergency
planning resources.
At new § 483.71(a)(4), we proposed to
require facilities to include the input of
facility staff, including but not limited
to categories such as nursing home
leadership, management, direct care
staff and their representatives, and staff
providing other services.
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We proposed at new § 483.71(b)(1) to
require facilities to use the facility
assessment to inform staffing decisions
to ensure appropriate staff are available
with the necessary competencies and
skill sets necessary to care for its
residents’ needs as identified through
resident assessments and plans of care
as required in § 483.35(a)(3).
In addition, we proposed a new
§ 483.71(b)(2) to require facilities to use
the facility assessment to assess the
specific needs for each resident unit in
the facility, and to adjust as necessary
based on any significant changes in the
resident population. Facilities would
also be required, at proposed
§ 483.71(b)(3), to consider the specific
staffing needs for each shift, such as
day, evening, night, weekends, and to
adjust as necessary based on any
significant changes to the resident
population.
We proposed at new § 483.71(b)(4)
that LTC facilities would have to use
their facility assessment to develop and
maintain a staffing plan to maximize
recruitment and retention of nursing
staff. We did not propose to specify how
the staffing plan should be developed or
what it must contain. We solicited
comments on the operational challenges
or burdens of this proposed provision,
as well as how CMS could best provide
oversight of this proposed requirement.
We proposed at § 483.71(b)(5), to
require facilities to use the facility
assessment to inform contingency
planning for events that do not
necessarily require the activation of the
facility’s emergency plan but do have
the potential to impact resident care.
Based upon our review and analysis
of the comments, we are finalizing the
proposed requirements as proposed
with some revisions. The language we
are finalizing and the reasons for those
changes are detailed in the comments
and responses below.
Comment: A few commenters
supported the move to relocate the
current requirements at § 483.70(c)
(Facility assessment to a standalone) to
§ 483.71 (Facility assessment). However,
other commenters opposed any changes
to the current facility assessment
requirements as unnecessary.
Response: We acknowledge that
relocating the facility assessment
requirements might not appear to be a
substantial change. However, the facility
assessment requirements are the
foundation for any LTC facility’s
planning for the staffing and other
resources that are necessary to provide
the appropriate care required for its
resident population. This merits a
separate requirement and also
emphasizes the importance of the
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facility assessment. Hence, we are
finalizing this redesignation as
proposed.
Comment: Some commenters were
supportive of the proposed changes to
the facility assessment requirements.
Several commenters were particularly
supportive of the insertion of
‘‘behavioral health issues’’ in
§ 483.35(a)(1)(ii) in describing the
factors the LTC facility’s assessment
must address regarding its resident
population. One commenter even stated
that the proposed changes to the facility
assessment requirement were one of the
most important changes that were
proposed. However, there were also
many commenters that opposed the
proposed changes. Some commenters
thought that the requirement was
formulaic and many LTC facilities just
‘‘sleepwalked’’ through the process.
Some opposed the proposed changes
contending that they would only result
in more paperwork and take direct care
staff away from resident care. They
contended that there was little, if any,
evidence that the current requirements
in any way benefitted residents,
especially regarding nurse staffing.
Other commenters noted that the facility
assessment requirement has been
essentially ignored by both LTC
facilities and surveyors. They noted that
from FY 2021 to FY 2023, there had
only been 592 deficiencies cited
regarding the facility assessment
requirement and in only 10 of these
cases was it even likely a financial
penalty would be imposed. However,
other commenters indicated that the
proposed changes were not necessary
because the vast majority of LTC
facilities were already in substantial
compliance with the current
requirements.
Response: The comments received
regarding facility assessment
demonstrated a diversity of opinions on
the proposed changes. We agree that the
proposed changes will strengthen the
overall facility assessment, which we
have long viewed as a foundational
element to care and resource planning
in LTC facilities. The facility assessment
is an important complement to the
minimum staffing requirements
finalized as part of this rule as it sets
standards that must be met for staffing
based on actual resident case-mix, not
just the floor (baseline) created by the
minimum staffing requirements. We
agree with the commenters that the
addition of ‘‘behavioral health issues’’ is
an important change and emphasizes
the need to consider these issues in the
facility assessment. Thus, we are
finalizing the addition of ‘‘and
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behavioral health’’ at § 483.35(a)(1)(ii) as
proposed.
However, we disagree with
commenters about the meaning of the
number of deficiencies cited by
surveyors. While the number of
deficiencies is relatively low, this is not
an indication that the requirement is
being ignored or dismissed by the LTC
facilities or surveyors. As some
commenters indicated, the vast majority
of LTC facilities are complying with the
facility assessment requirement. Also,
some surveyors might choose to cite a
deficiency based on a requirement set
out elsewhere in the LTC participation
requirements instead of the facility
assessment requirement. For example, a
surveyor might cite a noncompliance
deficiency for the sufficient nurse
staffing requirement set forth at
§ 483.35(a)(1) rather than the facility
assessment requirement. Regarding the
commenters who opined that LTC
facilities were only ‘‘sleepwalking’’
through the process, the governing body
is responsible for the quality of care
provided to residents and how the LTC
facility’s policies are established and
implemented (§ 483.70(d)(a)). The
medical director is responsible for the
implementation of resident care
policies; and the coordination of
medical care in the facility (§ 483.70(h)).
Hence, it is the responsibility of both
the governing body and the medical
director to ensure that requirements,
including the facility assessment
requirement, are complied with at their
facility to ensure that residents receive
quality, safe care. To address this
concern, we are finalizing at § 483.71(b)
a requirement that the LTC facility must
ensure the active participation of a
member of the governing body and the
medical director in the facility
assessment process. This is discussed in
more detail below.
Comment: Many commenters
supported the proposed facility
assessment changes and recommended
the requirement be strengthened. Some
recommended that a tool be developed
for LTC facilities to follow in
conducting their facility assessments.
Others recommended that LTC facilities
could be required to follow a prescribed
method or specific methodologies to
provide some uniformity in the facility
assessments and focus the assessments
on resident acuity. They also suggested
that the facility assessments should be
reviewed and updated more often, such
as quarterly. A few commenters
recommended that the facility
assessment either be included in or
structured similarly to the quality
assessment and program improvement
(QAPI) program. Some others wanted to
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require an evaluation of all of the
training programs in the facility
assessment process.
Response: CMS thanks the
commenters for their recommendations.
However, we will not finalize any of
these recommendations as requirements
in this rule. We will continue to
evaluate these suggestions and consider
these comments if there is future
rulemaking regarding the facility
assessment requirement. Regarding an
evaluation of training programs in the
facility assessment, at § 483.95 we
require LTC facilities to develop,
implement, and maintain an effective
training program for all new and
existing staff; individuals providing
services under a contractual
arrangement; and volunteers, consistent
with their expected roles. LTC facilities
are required to determine the amount
and type of training necessary based on
their facility assessment as now set forth
at new § 483.71. Hence, part of
developing or reviewing and updating
the facility assessment would include
determining the amount of and type of
training each individual providing
services to residents should receive.
Comment: Several commenters were
concerned about the proposed staff
required to be involved in the facility
assessment process, although many
other commenters supported the idea
that direct care staff should be closely
involved in creating the facility
assessments. Some commenters wanted
to specifically name RNs and all other
levels of nursing staff to ensure their
input on staffing was included in the
facility assessment. They contended that
RNs were in the best position to
determine staffing levels for the various
units in the LTC facility. Other
commenters contended that Nas should
be specifically named since they
provide most of the direct resident care.
Some commenters were very supportive
of our proposal because they believed
the LTC facility’s Medical Director
should be actively involved in the
facility assessment process. A few also
suggested that the governing board be
included in the process. However, other
commenters opposed expanding the
requirements for who should be
involved in this process, especially in
requiring non-staff or other third parties
in the facility assessment process.
Commenters contended that this would
be inappropriate since it is an
operational document for the facility.
They suggested that the inclusion of
third parties, especially union
representatives, could be disruptive,
divisive, and render the facility
assessment ineffective. In addition,
there are concerns that third parties,
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especially union representatives, would
not be primarily concerned about the
residents’ care and well-being but the
workers they represent. Specifically,
they raised their concerns that union
representatives would be concerned
with their members’ compensation,
benefits, and working conditions and
not the care provided to residents. To
address this concern, a few commenters
recommended that any representatives
of direct care workers also be an
employee of the LTC facility. These
commenters contended that only
another employee would have the
knowledge of the facility and its
operations to provide beneficial input
into the facility assessment. Other
commenters noted that the guidance
contained in the State Operation
Manual that is used for surveys already
indicates that LTC facilities should seek
input from residents, resident
representatives, resident families, and
family councils.66
Response: The staff involved in the
facility assessment are essential to the
quality and comprehensiveness of the
assessment. We agree with the
commenters that all levels of the
nursing staff need to be included in the
facility assessment process so that the
final product is comprehensive and
provides the maximum benefit to the
residents and the LTC facility. As
discussed above, it is the governing
body that is responsible for establishing
and implementing the policies
(§ 483.70(d)(a)) and the medical director
is responsible for the implementation of
that these individuals would also be
essential to the facility assessment
process. The most contentious
comments generally regarded the
proposal for representatives of direct
care staff. We thank commenters for
their suggestions. We agree the purpose
of the facility assessment is to identify
the resources and supports needed to
safely care for residents. However, we
also believe that individuals other than
facility staff could offer beneficial input
for the process. Input from the
representatives of direct care staff, for
example, third-party elected local union
representatives, business agents, safety
and health specialists, or a non-union
worker’s designated representatives
from a worker advocacy group,
community organization, local safety
organization, or labor union, could be
especially important. Direct care staff
may be hesitant to criticize staffing
66 State Operations Manual, appendix PP
Guidance to Surveyors for Long Term Care
Facilities (Rev. 211, 02–03–23), Tag F838, Guidance
sec. 483.70(e) (Rev.: 173, Issued: 11–22–17,
Effective 11–28–17, Implementation: 11–28–17).
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40907
decisions of management or fear
retaliation. Their representatives would
generally be able to speak more freely
and can reflect concerns that they have
heard across a number of staff members.
We agree that representatives who are
not themselves employees may not have
the knowledge of the facility or its
operations as an employee would;
however, it is the representatives’ ability
to provide input that employees might
be hesitant to provide themselves that
could be valuable input.
We want to clarify that the
requirement for ‘‘direct care staff’’
means more than RNs, LPNs/LVNs, and
Nas alone. We encourage LTC facilities
to solicit input or even active
participation from other direct care staff,
especially physicians, nurse
practitioners, physician assistants,
social workers, activity directors,
dieticians/nutritionists, and other
therapists. Also, if the LTC facility has
specialized units, such as, memory care,
behavioral health, sub-acute, or
ventilator/trach dependent, we
encourage the inclusion or input of staff
from those units. Due to the care
provided by these specialized units,
their staff could provide valuable input
into the staffing and other resource
requirements needed for the residents
care for in units.
We also want to clarify our
expectations regarding ‘‘active
participation’’ for the staff identified in
this requirement. LTC facilities need
flexibility in how they conduct,
develop, and implement their facility
assessments. Hence, ‘‘active
participation’’ does not require that all
identified staff or their representatives
are at every meeting or discussion or
must approve the final facility
assessment. However, at a minimum, all
identified staff should have the
opportunity to present their views and
have those views considered by the
other staff that are actively participating
in the process. LTC facilities should
determine the level of active
participation for each individual
thereafter. For example, if some
meetings would focus on nurse staffing,
the LTC facility would not necessarily
have to require a physical therapist or
a member of the food and nutrition staff
to attend. Also, the LTC facility could
limit the staff who would be responsible
for the final approval of the facility
assessment. In addition, individuals
could participate in-person or virtually.
For example, the medical director or
member of the governing body could
participate by phone in meetings or
provide their input and comments on
drafts in written form. Regarding those
individuals whose input should be
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solicited and considered if received, the
LTC facility should actively solicit input
from identified participants. The LTC
facility should determine the best way
to contact these individuals to solicit
their input. The input should then be
shared with all of the individuals who
are actively participating in the facility
assessment process in time for there to
be a discussion of the received input.
The time period for providing input
should be reasonable. The individuals
from whom input is being sought would
likely need more than a few days or a
week to contemplate what input they
want to provide.
Hence, we are revising § 483.71(b)(1)
to require that the LTC facility require
the active participation of the nursing
home leadership and management
including but not limited to, a member
of the governing body, the medical
director, an administrator, and the
director of nursing; and, direct care
staff, including but not limited to, RNs,
LPNs/LVNs, Nas, and representatives of
direct care staff, if applicable. The LTC
facility must also solicit and consider
input received from residents, resident
representatives, family members.
Comment: Some commenters
contended that the proposed
requirements conflicted with each other,
especially the minimum nurse staffing
and 24/7 RN requirements. They also
noted concerns about how the facility
assessment requirement worked with
these requirements.
Response: All of the requirements in
this finalized rule are designed to both
function independently and work
together to ensure that LTC facility
residents receive the quality care
required for their health and safety
needs. The minimum nurse staffing
requirement as set forth in § 483.35(a)(1)
requires LTC facilities to have a
minimum total nurse staffing of 3.48
HPRD with a minimum 0.55 HPRD for
RNs, and a minimum total of 2.45 HPRD
for Nas. Unless a LTC facility is
exempted as described in § 483.35(h),
each LTC facility must comply with the
requirement. The 24/7 RN requirement
is in addition to the minimum nurse
staffing requirement; however, each RN
that is on duty and providing direct
resident care also counts towards both
requirements. Hence, there is no conflict
between these requirements. The facility
assessment requirement as set forth at
§ 483.71 is a separate requirement that
is designed to ensure that each LTC
facility has assessed its resident
population to determine the resources,
including direct care staff, their
competencies, and skill sets, the facility
needs to provide the required resident
care. If the facility assessment indicates
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that a higher HPRD for either total
nursing staff or an individual nursing
category is necessary for ‘‘sufficient
staffing’’, the facility must comply with
that determination to satisfy the
requirement for sufficient staffing as set
forth at § 483.35(a)(1). The facility
assessment requirement ensures that
each LTC facility assesses the needs of
its resident population to determine the
resources it needs to provide the care its
residents require. However, if the
facility assessment indicates that a
lower HPRD or that a 24/7 RN is not
required to care for their resident
population, the LTC facility must still
comply with those minimum staffing
requirements. Hence, these
requirements do not conflict with each
other. Each requirement works
independently to achieve the separate
goals of a minimum nurse staffing
requirement and an assessment of the
resources that are required to care for
the LTC facility’s resident population.
They also work together to ensure that
each LTC facility is providing the
quality, safe care required for their
resident population.
Comment: Some commenters
questioned the usefulness of the facility
assessment regarding determinations of
daily staffing needs. They contended
that the facility assessment is more
global rather than granular, that is, it
cannot assist with the daily changes in
resident acuity.
Response: We acknowledge that
resident acuity and daily staffing needs
can vary. LTC facilities must already
contend with and adjust for these
changes daily. However, if the facility
assessment was conducted according to
the requirements finalized in this rule,
LTC facilities should know the number
of staff, the competencies, skills sets
they need, and the other resources
needed to care for residents in their
facilities. This should enable LTC
facilities to adjust their staffing and
other resources to compensate for
resident acuity and changes needed in
daily staffing.
Comment: In the proposed rule, we
discussed some of the reasons input
from representatives of direct care
representatives could be important for
the facility assessment process. One
statement was, ‘‘[a]longside direct care
employees, their representatives may
also help ensure facility assessments are
up-to-date and used to inform facility
staffing’’ (emphasis added) (88 FR
61375). Several commenters disagreed
with the part of the statement
emphasized in italics above. These
commenters contended the enforcement
role belongs exclusively to State and
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Federal surveyors and is never the
domain of a third-party representatives.
Response: We agree with the
commenters that the enforcement of the
LTC participation requirements is not
within the scope of participation of
third-party representatives. However,
the referenced statement in the
proposed rule located at 88 FR 61375 is
not referring to any enforcement role. As
stated in the proposed rule, the input
from representatives of direct care
workers could be beneficial, especially
when the direct care workers are
hesitant to raise concerns with their
employers about the current staffing in
the facility. In such instances,
representatives can provide the LTC
facility with assessments and
recommendations anonymously from
direct care workers free from the fear of
retaliation, which could assist LTC
facilities in ensuring their facility
assessments are up to date and
accurately inform facility staffing
without retaliation. Ultimately, we
believe that this type of input can
positively impact staff leading to better
and safer care for residents. Hence, we
are finalizing a requirement that LTC
facilities ensure the active participation
of direct care staff, including but not
limited to, RNs, LPNs/LVNs, NAs, and
representatives of direct care staff, if
applicable.
Comment: Some commenters
contended that the proposed changes
constitute a one-size-fits-all approach
that is inconsistent with the goals of the
facility assessment. They contend that
the individual needs of the residents
and LTC facilities are not being
considered or acknowledged in the
proposed rule.
Response: We do not agree that these
requirements utilize a ‘‘one-size-fits-all’’
approach. The minimum nurse staffing
requirement as set forth in § 483.35(b)(1)
requires LTC facilities to have a
minimum total nurse staffing of 3.48
HPRD with a minimum 0.55 HPRD for
RNs, and a minimum total of 2.45 HPRD
for NAs. Because HPRD involves an
assessment of the total number of hours
worked by each type of staff compared
to the actual number of residents in the
facility, it is automatically adjusted for
size of facility. With the facility
assessment requirement, each
individual LTC facility assesses its own
resident population and the resources
needed to care for them, which will
often result in facilities needing to staff
higher than the minimum staffing
requirements. Thus, neither of these
requirements is ‘‘one-size-fits-all’’
because they are tailored to each LTC
facility. The only requirement that is the
same regardless of the LTC facility or its
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resident population is the 24/7 RN
requirement. However, this requirement
is designed to reduce the occurrence of
preventable safety events for residents,
as well as address health and quality
concerns, which requires at least one
RN providing direct resident care
throughout the day. LTC facilities are
expected to increase RN coverage as
needed to comply with the minimum
nurse staffing requirements and their
facility assessment. The minimum nurse
staffing and 24/7 RN requirements are
not justifications for any LTC facility to
fail to provide the direct care staff with
the appropriate competencies and skill
sets and other resources required to
appropriately care for its resident
population.
Comment: Some commenters were
supportive of the requirement for
certain individuals to be involved in the
facility assessment process but
recommended more time to comply
with the requirement. These
commenters noted that it would be
difficult to assemble the staff required,
develop the facility assessment, and a
staffing plan in the usual time allotted
after a final rule is published. One
commenter recommended 120 days after
the final rule was published, and
another recommended two years.
Response: All LTC facilities should
already have a facility assessment.
While it should not take an extended
period of time to do so, CMS is
concerned that some LTC facilities
might need more time to comply with
the requirements finalized in this rule.
For example, some LTC facilities might
need additional time due to staffing
issues or a lack of previous
documentation. Hence, we are finalizing
a longer implementation date for the
facility assessment requirements in this
rule to allow more time for LTC
facilities to come into compliance. We
proposed a 60-day implementation date
for the facility assessment requirements,
however, we are modifying our proposal
to require implementation of the facility
assessment requirements 90 days after
publication of this final rule. LTC
facilities should be using the facility
assessment to determine appropriate
staffing needs based on their resident
population’s care needs and meet these
requirements in an accelerated manner.
Comment: Commenters were divided
on the proposed requirement that set
forth how LTC facilities were to use
their facility assessments. Many
commenters opined that additional
requirements were unnecessary,
burdensome, and would also be taking
direct care staff away from resident care.
There were also many commenters that
were supportive, especially regarding
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the requirement that the LTC facility use
their facility assessment in making
staffing decisions and in developing and
implementing the staffing plan. One
commenter was grateful that this section
was clarifying how the facility
assessment should be used and
indicated that this made it more
meaningful. Other commenters
recommended that the requirement be
strengthened to increase its
effectiveness. Some commenters
recommended a requirement for an
assessment committee. Other
commenters recommended a
requirement on specific items that
should be considered or included in the
staffing plan, such as compensation and
training for direct care staff.
Response: The new requirement at
§ 483.71(c) is intended to provide
clarification on how LTC facilities are to
use their facility assessments. While
some commenters might argue that it is
unnecessary, we disagree. The facility
assessment is the foundation for LTC
facilities to assess their resident
population and determine the direct
care staffing and other resources, to
provide the required care to their
residents. The facility assessment must
be conducted and developed with the
intent of using it to inform decision
making, especially about staffing
decisions. The facility assessment must
be used to develop and maintain the
staffing plan or the plan to maximize
recruitment and retention of direct care
staff. The facility assessment should
identify the numbers of staff, types of
staff, the required competencies and
skill sets that staff require to care for the
resident population. Thus, the facility
assessment would inform the staffing
plan the LTC facility requires. The
facility assessment must also be used to
inform contingency planning. LTC
facilities will likely encounter different
events that have the potential to affect
resident care. These events, however, do
not necessarily require activation of the
facility’s emergency plan. The facility
assessment should be used to inform
contingency planning to address these
types of events. For example, direct care
staff will call in sick some days. LTC
facility must have contingency plans for
when direct care staff cannot come into
work. Hence, we are finalizing
§ 483.71(c) as proposed.
Comment: Some commenters opposed
facility assessment requirements being
used to cite for deficiencies during a
survey. Commenters asserted that
surveyors could not determine the
quality of the facility assessment or the
staffing plan. Also, they noted that even
if the staffing plan was well developed,
its effectiveness depended on so many
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40909
factors that LTC facility should not be
responsible for any results.
Response: We agree with the
commenters that surveyors cannot
determine the quality of the facility
assessment. Surveyors determine
whether or not the LTC facility has
complied with the facility assessment
requirements as set forth at new
§ 483.71. Therefore, an LTC facility
could be cited for non-compliance if its
facility assessment failed to contain all
the requirements set forth in new
§ 483.71 and failed to determine a direct
care staffing plan consistent with
facility resident acuity levels.’’
Comment: Some commenters were
concerned about the potential of direct
care staff, especially nurses,
encountering retaliation as a result of
participation in the facility assessment
process. These staff might hesitate to
criticize the LTC facility’s staffing
policies or make recommendations
about staffing that they know will not be
endorsed by the management. Some
commenters recommended that nurses
have some protections, such as
whistleblower protections.
Response: RNs, LPNs/LVNs, and NAs
are critical to a comprehensive and
effective facility assessment. We
encourage all direct care staff involved
in the facility assessment process to
provide thoughtful and honest feedback
when participating in the facility review
and development process for the
assessment. Similarly, management
should not punish or retaliate against
direct care staff for providing honest
input. In this rule, we are finalizing a
requirement for facilities to ensure
active participation from representatives
of direct care staff, if applicable, as such
we encourage staff, especially those who
may be concerned about potential
retaliation, to communicate with and
utilize their representatives as a
resource for sharing input. In addition,
the Occupational Safety and Health
Administration (OSHA) has resources to
help employers learn about
recommended practices to keep their
workplaces free of illegal retaliation.67
Final Rule Action: We are finalizing
as proposed the relocation of § 483.70(e)
to a standalone section, § 483.71. We are
finalizing as proposed the addition of
‘‘behavioral health issues’’ to
§ 483.71(a)(1)(ii); the addition of ‘‘and
skill sets’’ to § 483.71(a)(1)(iii); and the
addition of ‘‘as required’’ in
§ 483.73(a)(1) through (3). We are also
finalizing our proposal to redesignate
the stem statement for current
§ 483.70(e) to the stem statement for
67 https://www.osha.gov/sites/default/files/
publications/OSHA3905.pdf.
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proposed § 483.71 and existing
§ 483.70(e)(1) through (3) as proposed
§ 483.71(a)(1) through (3), respectively.
We are finalizing as revised § 483.71(b)
to require that the LTC facility actively
require the participation of the nursing
home leadership and management,
including but not limited to, a member
of the governing body, the medical
director, an administrator, and the
director of nursing; and, direct care
staff, including but not limited to, RNs,
LPNs/LVNs, NAs, and representatives of
direct care staff, if applicable. The LTC
facility must also solicit and consider
input received from residents, resident
representatives, family members, and
representatives of direct care staff. We
are also finalizing as proposed
§ 483.71(c) that sets out the activities for
which the LTC facility must use the
facility assessment, including making
staffing decisions, developing and
maintaining a plan to maximize
recruitment and retention of direct care
staff, to inform contingency planning for
events that do not necessarily require
activation of the facility’s emergency
plan.
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7. Implementation Timeframe
We proposed to implement the 0.55
RN and 2.45 NA HPRD, the RN onsite
24 hours a day, 7 days a week, and
facility assessment requirements in
three phases, to avoid any unintended
consequences or unanticipated risks to
resident care when a facility is
developing new policies and procedures
necessary to comply with these
requirements. This would give facilities
significant time to recruit additional
staff needed to meet the requirements.
In addition, we anticipate that
additional time would be needed to
develop revised interpretive guidance
and survey processes, conduct surveyor
training on the changes, and implement
the changes in the Long-Term Care
Survey Process system.
For facilities located in urban areas,
we proposed that implementation of the
final requirements be achieved in three
phases, over a 3-year period.
Specifically, we proposed that—
• Phase 1 would require facilities to
comply with the facility assessment
requirements (§ 483.71) 60-days after the
publication date of the final rule.
• Phase 2 would require facilities to
comply with the requirement for a RN
onsite 24 hours a day, 7 days a week
(§ 483.35(b)(1)) 2 years after the
publication date of the final rule.
• Phase 3 would require facilities to
comply with the minimum staffing
requirement of 0.55 and 2.45 HPRD for
RNs and NAs respectively
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(§ 483.35(a)(1)(i) and (ii)) 3 years after
the publication date of the final rule.
For facilities located in rural areas, we
proposed the implementation of the
final requirements be achieved in three
phases, over a 5-year period.
Specifically, we proposed that—
• Phase 1 would require facilities to
comply with the facility assessment
requirements (§ 483.71) 60-days after the
publication date of the final rule.
• Phase 2 would require facilities to
comply with the requirement for a RN
onsite 24 hours a day, 7 days a week
(§ 483.35(b)(1)) 3 years after the
publication date of the final rule.
• Phase 3 would require facilities to
comply with the minimum staffing
requirement of 0.55 and 2.45 HPRD for
RNs and NAs respectively
(§ 483.35(a)(1)(i) and (ii)) 5 years after
the publication date of the final rule.
For purposes of the implementation
timeframe, we proposed to define
‘‘rural’’ in accordance with the Census
Bureau definition. ‘‘Rural’’ encompasses
all population, housing, and territory
not included within an urban area 68 We
also solicited public comments on
whether a different definition should be
used. We noted that the final regulations
would be effective 60 days following the
publication of the final rule in the
Federal Register and solicited public
comments.
We received the following comments
in response to this solicitation.
Comment: Many commenters
supported a single implementation
timeframe for both rural and urban LTC
facilities. They expressed concerns that
workforce shortages existed in both
urban and rural areas regardless of
facility location. One commenter stated
that the separate phase-in timeframes
would foster competition between urban
and rural facilities, that nursing staff
would be recruited away from rural
areas to fulfill the needs of urban areas
first, and when it became time for rural
areas to recruit, they would find
themselves competing to bring staff
back. Many commenters noted that an
extended implementation timeframe for
rural areas would exacerbate existing
disparities in the quality of care for rural
residents. Moreover, commenters
emphasized that residents in rural LTC
facilities were entitled to the same
quality of care as those in urban and
underserved areas. Some commenters
expressed concerns that the proposed
68 https://www.census.gov/programs-surveys/
geography/guidance/geo-areas/urbanrural.html#:∼:text=Rural
%20encompasses%20all%20population%2C
%20housing,and
%2For%20population%20density%20
requirements.
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implementation timeframe favored rural
areas as they would have not only an
extended phase-in timeframe but also
would be able to utilize the exemptions.
Response: We agree that residents in
both urban and rural LTC facilities
deserve access to safe and high-quality
care and are finalizing for all LTC
facilities, regardless of location,
minimum nurse staffing standards along
with a 24 hour per day, 7 day per week
requirement for an RN to be onsite and
available to provide resident care. We
also agree with commenters that
workforce shortages exist regardless of
facility location, which is why we are
finalizing exemption criteria that focus
on the provider-to population ratio
rather than on a facility’s rural status
alone. Equal access to exemptions from
the requirements of this rule based on
a pronounced unavailability of
registered nurses and nurse aides will
address this concern. We do not agree
that a staggered implementation will
result in potential employees being
recruited away by facilities in urban
areas, as there is no regulation that
would prohibit any rural LTC facility
from recruiting and retaining all nursing
staff at any time, including those times
when non-rural facilities are actively
increasing their own staffing levels to
comply with the requirements of this
final rule. However, we recognize that
there is a possibility that potential
employees may opt to relocate if
employers offer a more competitive
salary. Additionally, all LTC facilities
are required to comply with the facility
assessment requirements at § 483.71
within the same timeframe, regardless of
their location, effective 90 days after
publication of this final rule. As part of
the facility assessment, LTC facilities
must develop and maintain a plan to
maximize recruitment and retention of
direct care staff.
We continue to recognize that rural
areas face myriad challenges ranging
from worker housing shortages to severe
transportation challenges for remote
facilities that are unique to their
location. We are thus finalizing, in
addition to an exemption framework, a
staggered implementation timeline that
allows additional time for rural facilities
to comply with the requirements of this
rule.
Comment: Many commenters
expressed concerns that the proposed
U.S. Census Bureau definition of
‘‘rural’’, for purposes of the proposed
implementation timeframe, does not
accurately represent rural areas. In 2022,
the U.S. Census Bureau published
updated criteria on how it will define
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urban areas.69 An urban area is
comprised of a densely settled core of
census blocks that meet minimum
housing unit density and/or population
density requirements. To qualify as an
urban area, the territory identified
according to criteria must encompass at
least 2,000 housing units or have a
population of at least 5,000 and rural
consists of all territory, population, and
housing units located outside urban
areas.70 Commenters expressed concern
that the revised definition is too narrow,
would exclude many areas that
historically have qualified as rural or
areas that fall under other Federal or
State definitions of ‘‘rural’’ and that as
a result, many LTC facilities in such
areas would not qualify for the proposed
extended implementation timeframe for
rural areas. Numerous commenters
suggested a wide variety of sources for
alternative definitions of ‘‘rural’’ that
CMS should consider using. A few
commenters suggested aligning the
definition of ‘‘rural’’ with other
Medicare programs in order to promote
consistency and assure access to
services in rural communities that
depend on LTC facilities for care
delivery.
Specifically, these commenters
suggested using the ‘‘rural’’ definitions
from the Medicare Rural Hospital
Flexibility Program, or the CMS–SNF–
IRF wage index. Numerous other
commenters suggested that CMS use an
alternative definition that is used by
other Federal programs and agencies.
Commenters suggested these alternative
definitions to address concerns that the
current definition is not sufficiently
accurate. Commenters suggested using
definitions from the Office of
Management and Budget (OMB),71 or
the Federal Office of Rural Health Policy
(FORHP.) 72
Response: We appreciate the varied
comments received on the proposed
‘‘rural’’ definition. While most
commenters did not support the use of
the Census Bureau’s definition of
‘‘rural’’ and suggested using alternative
definitions, there was not a consensus
about which definition of ‘‘rural’’ would
be most appropriate to use for the rule.
However, we do acknowledge that using
69 87 FR 16706, March 24, 2022 (https://
www.federalregister.gov/documents/2022/03/24/
2022-06180/urban-area-criteria-for-the-2020census-final-criteria).
70 https://www.census.gov/programs-surveys/
geography/guidance/geo-areas/urbanrural.html#:∼:text=Rural%20encompasses%20
all%20population%2C%20housingand%2For%20
population%20density%20requirements.
71 https://www.ruralhealthinfo.org/topics/what-isrural.
72 https://www.hhs.gov/guidance/document/
defining-rural-population.
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the Census Bureau definition of ‘‘rural’’
for this rule could mean that counties
that were considered rural prior to the
Census Bureau updates in 2022 or under
alternative Federal definitions such as
the Office of Management and Budget
(OMB), would now be considered
urban. For example, if we were to use
the Census Bureau’s definition of
‘‘urban’’, 2,645 counties would be
classified as urban,73 while if we were
to use OMB’s definition of ‘‘urban’’,
1,252 counties would be considered
‘‘urban.’’ 74 Furthermore, the 2022 urban
area delineations issued by U.S. Census
Bureau removed the subcategories of
urbanized areas (encompasses a
population of 50,000 or more people)
and urban clusters (encompasses a
population of at least 2,500 and less
than 50,000 people).75 This means that
towns as small as 5,000 people are
delineated as urban areas with no
differentiation between small towns and
large cities.
We agree that the definition used in
the rule should be consistent with the
definition used in other Medicare
programs and note that the definition of
‘‘rural’’ from OMB has been used by the
critical access hospital requirements
(see 42 CFR 485.610 76), and rural
emergency hospital requirements (see
section 1886(d)(2)(D) of the Act 77 and
42 CFR 485.506 78).
Based on the considerations of the
comments and suggested alternatives,
we are finalizing to define ‘‘rural’’ in
accordance with the OMB definition.
OMB designates counties as
Metropolitan (metro), Micropolitan
(micro), or neither. ‘‘A Metro area
contains a core urban area of 50,000 or
more population, and a Micro area
contains an urban core of at least 10,000
(but less than 50,000) population. All
counties that are not part of a
Metropolitan Statistical Area (MSA) are
considered rural.’’ 79
73 A list of all 2020 Census Urban Areas from the
U.S., Puerto Rico, and Island Areas sorted by Urban
Areas Census (UACE): https://www.census.gov/
programs-surveys/geography/guidance/geo-areas/
urban-rural.html.
74 Core Based Statistical Areas (CBSAs),
Metropolitan Divisions, and Combined Statistical
Areas (CSAs): https://www.census.gov/geographies/
reference-files/time-series/demo/metro-micro/
delineation-files.html.
75 https://www.ruralhealthinfo.org/topics/what-isrural.
76 https://www.ecfr.gov/current/title-42/chapterIV/subchapter-G/part-485/subpart-F/section485.610.
77 https://www.ssa.gov/OP_Home/ssact/title18/
1886.htm.
78 https://www.ecfr.gov/current/title-42/chapterIV/subchapter-G/part-485/subpart-E.
79 https://www.hhs.gov/guidance/document/
defining-rural-population.
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Comment: Many commenters stated
that the adoption of a final rule
establishing minimum staffing in LTC
facilities was essential. However, the
commenters suggested various
implementation timeframes. Many
commenters recommended that CMS
shorten the implementation timeframe
to less than five years, with some
suggesting that a shorter
implementation timeframe would
motivate facilities to begin recruiting
and retaining staff to meet the finalized
requirements as soon as possible. A
commenter suggested that the LTC
facilities would be able to meet the
standards in a shorter phase-in because
the proposed minimum nursing
standards were relatively low and that
the nursing staff needed would not need
more than two hours of training.
Conversely, numerous other
commenters suggested that CMS
implement a phase-in timeframe of
more than five years for all LTC
facilities. One commenter expressed
that the proposed phase-in timeframes
did not allow sufficient time to recruit,
train and graduate enough RNs due to
the shortage of available seats in nursing
schools. The commenter suggested that
an unintended consequence of the
proposed rule would be to force LTC
facilities to hire nurses that might not be
qualified and the LTC facilities would
not have the time to train new staff ‘‘to
ensure competency’’ and as a result, the
LTC facilities would meet the minimum
nursing requirement, but the residents
would still be at risk due to the
untrained staff. A commenter expressed
that the additional time would allow
facilities the time and financial support
needed to ‘‘build out the necessary
education and workforce infrastructure,
so that hiring of the additional staff can
happen.’’ Moreover, one commenter
suggested that CMS delay the
implementation timeframe of all LTC
facilities ‘‘to at least 5 years after the
date of the final rule, with an additional
at least 36-month allowance period for
facilities to hire staff once the workforce
is available’’.
Response: We agree with the
commenters that the minimum staffing
requirements are essential and are
finalizing them with the revisions
described in this rule. In determining
the question of the appropriate timeline
for implementing these changes, we
sought to strike a balance between
ensuring a higher level of resident safety
through earlier implementation and
assuring that the implementation of
these changes is not so aggressive as to
result in unintended facility closures or
resident census reductions, both of
which could negatively impact the
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ability of residents to receive care in a
location that is close to their loved ones.
In addition to considering comments
regarding the exact implementation
timeframe, we also considered the
totality of the many flexibilities that are
included in this final rule, including
finalization of the proposed exemptions
to the NA and RN HPRD requirements,
and the addition of exemptions for the
total nurse 3.48 HPRD requirement and
for the 24 hours per day, 7 days per
week RN requirement. As such, we are
finalizing the implementation timeframe
as proposed for all non-rural LTC
facilities to complete implementation 3
years after the publication date of this
final rule and all rural facilities will
complete implementation 5 years after
the publication date of this final rule.
We believe that this is the most
appropriate approach to implementation
in light of the conflicting public
comments on the subject of the
implementation timeframes, the many
revisions that we have made to the
policies within this rule, and our policy
goal of improving the care of all LTC
facility residents while avoiding
unintended consequences. We strongly
encourage all LTC facilities to begin
working towards full compliance as
quickly as possible.
Comment: Numerous commenters
suggested that CMS outline interim
milestones gradually increasing each
year until LTC facilities meet the final
RN and NA HPRD requirements. They
stated that this approach would allow
for LTC facilities to slowly adapt to the
new minimum staffing requirements
while continuing to provide safe and
quality care. In addition, this approach
would discourage last-minute hiring
practices by LTC facilities.
Response: Taking into consideration
conflicting comments, we have
structured the implementation of the
final policy discussed in this rule to
occur in three phases; Phase 1 requires
facilities to comply with the facility
assessment requirements; Phase 2
requires facilities to comply with the
requirement for a facility to provide 3.48
HPRD of nursing care and to have a RN
onsite 24 hours a day, 7 days a week;
and Phase 3 requires facilities to comply
with the minimum staffing requirements
of 0.55 and 2.45 HPRD for RNs and NAs
respectively. We are phasing in the 3.48
HPRD total staffing requirements during
Phase 2 as we expect LTC facilities will
be able to comply quickly with this
requirement since facilities may use any
combination of nursing staffing types
(RN, LPN/LVN, or NA), rather than
using specific nursing staffing types to
meet this requirement. However, we
expect LTC facilities that are currently
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staffing in excess of 3.48 HPRD of total
nursing care will not reduce their total
nurse staffing HPRD when the 3.48
HPRD for total nurse staffing
requirement is implemented. LTC
facilities should continue using the
facility assessment to determine staffing
needs above the finalized minimum
standards to provide safe and quality
care based on resident acuity.
Beyond these phases, we do not agree
that it is appropriate to specify
additional interim milestones. We
believe that milestones should be
specific to the needs of each facility and
as part of the facility assessment, a LTC
facility must have a facility-wide
assessment to determine what resources
are necessary to care for its residents.
That assessment should consider,
among other things, the facility’s
resident population, staff competencies
and necessary skill set, its resources,
and other factors that may affect the care
it provides. The facility must use this
facility assessment to inform staffing
decisions to ensure that there are a
sufficient number of staff with the
appropriate competencies and skill sets
necessary to care for residents’ needs
and to develop and maintain a plan to
maximize recruitment and retention of
direct care staff. The facility assessment
will drive the interim steps that need to
occur at each facility in preparation for
complying with the requirements of this
final rule.
Comment: A commenter suggested
that we delay the implementation of the
requirements until CMS has completed
a pilot program first.
Response: We appreciate this
suggestion. However, we believe that
the minimum staffing requirements
need to be implemented as soon as
possibly feasible to ensure residents
receive safe and quality care in LTC
facilities. Therefore, CMS will not
proceed with a pilot program.
Comment: Commenters expressed that
there is not a need for a longer
implementation timeframe for other
underserved communities, as there is no
evidence available to show that LTC
residents in underserved communities
have lesser needs than LTC residents in
other areas. They stated that it would
only perpetuate poor quality care for
underserved communities, especially
among racial and ethnic minorities.
Response: We agree with the
commenters. Residents in LTC facilities
should have access to safe and quality
care, regardless of location. Therefore,
we are not extending the
implementation timeline for medically
underserved communities.
Comment: A commenter
recommended that we consider ways to
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incentivize nursing homes to meet the
minimum nursing requirements on an
accelerated timeline.
Response: In the FY 2023 SNF
Prospective Payment System (PPS) Rule
final rule (87 FR 47570 through 47576),
we adopted the Total Nursing Hours per
Resident Day Staffing (Total Nursing
Staffing) measure for the Skilled
Nursing Facility Value-Based
Purchasing (SNF VBP) Programbeginning with the FY 2026 program
year. LTC facilities that have SNF beds
participate in the SNF VBP Program and
are subject to payment incentives under
the program. Therefore, these LTC
facilities will be incentivized to comply
with the minimum staffing requirements
because as their performance on the
Total Nursing Staffing measure for the
SNF VBP Program improves, those
facilities may receive more favorable
payment adjustments. Specifically, the
LTC facilities that increase their staffing
levels in FY 2025 and FY 2026 may
receive either increased improvement or
achievement scores under the SNF VBP
Program. CMS awards achievement
points to facilities that perform higher
than the 25th percentile of national SNF
performance on program measures and
awards improvement points to facilities
that have shown improvements in the
measure performances from the baseline
period to the performance period.
Performance on the Total Nurse Staffing
measure in the FY 2025 and FY 2026
performance year will affect payment
adjustments in FY 2027 and FY 2028
program years respectively. LTC
facilities that focus early on increasing
their nurse staffing levels and otherwise
improving performance on quality
measures, such as the Total Nurse
Staffing measure would have the
opportunity to identify areas for further
improvements and to take the necessary
steps to address them. This could result
in higher scores for the Total Nurse
Staffing measure and subsequent
increases in payment adjustments.
Regardless of these incentives, LTC
facilities should use the facility
assessment to determine appropriate
staffing needs based on their resident
population and their needs and meet
these requirements in an accelerated
manner to ensure timely and quality
care to residents.
Comment: Some commenters
recommended that we provide technical
assistance to help LTC facilities meet
the minimum staffing requirements
within the proposed timeframe.
Response: As noted previously, CMS
is launching an initiative to help
increase the LTC workforce by
committing over $75 million in
financial incentives, such as tuition
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reimbursement, to support the
recruitment, training, and retention of
nursing staff.80 CMS is also exploring
the potential to provide technical
assistance to LTC facilities through the
Quality Improvement Organizations and
additional opportunities to provide
technical assistance to those facilities
impacted by this final rule. CMS will
release interpretative guidance
following the publication of the rule
ahead of each implementation phase.
Comment: A few commenters
expressed that State governments must
plan for and readjust funds in order to
meet the increased expense that hiring
staff will require. According to the
commenters, currently most State
Medicaid rates do not cover the daily
cost of care for residents and will not be
able to cover the increased cost of labor
this minimum staffing requirement will
incur. Commenters suggested working
with State Medicaid officials and
managed care plans to ensure
appropriate reimbursement rates while a
commenter recommended that we
establish advance funding for State
governments.
Response: While the actions of State
governments, including Medicaid rates,
are not within the scope of this rule, we
note that the policies in this rule will be
phased in over a period of up to 5 years.
Final Rule Action: After consideration
of the comments, we received on the
proposed rule, we are finalizing the
following implementation timeframe as
follows:
• Rural facilities (as defined by
OMB):
++ The requirement related to the
Facility assessment at § 483.71 must be
completed 90-days after the publication
date of this final rule.
++ The requirement related to
providing 3.48 HPRD for total nurse
staffing at § 483.35(b)(1) and the
requirement related to 24/7 onsite RN at
§ 483.35(c)(1) must be implemented 3
years after the publication date of this
final rule.
++ The requirements related to
providing 0.55 RN and 2.45 NA HPRD
40913
at § 483.35(b)(1)(i) and (ii) must be
implemented 5 years after the
publication date of this final rule.
• Non-rural facilities:
++ The requirement related to the
Facility assessment at § 483.71 must be
completed 90 days after the publication
date of this final rule.
++ The requirement related to
providing 3.48 HPRD for total nurse
staffing at § 483.35(b)(1) and the
requirement related to 24/7 onsite RN at
§ 483.35(c)(1) must be implemented 2
years after the publication date of this
final rule.
++ The requirements related to
providing 0.55 RN and 2.45 NA HPRD
at § 483.35(b)(1)(i) and (ii) must be
implemented 3 years after the
publication date of this final rule.
These regulations are effective 60days following the publication of the
final rule in the Federal Register. The
implementation date for the specific
requirements are listed in detail in
tables 3 and 4.
Table 3: Implementation Timeframes for Facilities in Rural Areas
§ 483.71
§ 483.35
§ 483.35
Phase 1: 90-da s after the ublication date of the fmal rule
Phase 2: 3 ears after the ublication date of the fmal rule
Phase 3: 5 ears after the ublication date of the fmal rule
Table 4: Implementation Timeframes for Facilities in Non-Rural Areas
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C. Severability Clause
Finally, we stated and continue to
affirm that, to the extent a court may
enjoin any part of the rule, the
Department of Health and Human
Services intends that other provisions or
parts of provisions should remain in
effect. Any provision of this final rule
held to be invalid or unenforceable by
its terms, or as applied to any person or
circumstance, shall be construed so as
to continue to give maximum effect to
the provision permitted by law, unless
such holding shall be one of utter
invalidity or unenforceability, in which
event the provision shall be severable
80 FACT SHEET: Biden-Harris Administration
Takes Steps to Crack Down on Nursing Homes that
Endanger Resident Safety | The White House:
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from this final rule and shall not affect
the remainder thereof or the application
of the provision to persons not similarly
situated or to dissimilar circumstances.
For instance, the specific HPRD and 24
hour, 7 day a week RN staffing
requirements finalized at § 483.35(b)(1)
and (c)(1) could independently make
improvements in the number of staff
present at a LTC facility—the continuity
of any one of the numeric standards
would be helpful, and they do not
require enforcement of the others to
improve conditions at LTC facilities. We
also note that the Medicaid reporting
provisions of this final rule regarding
the percent of payments spent on
compensation for direct care and
support staff workforce operate
independently of mandated levels of
nurse staffing—this is a reporting
requirement, and the information about
Medicaid expenditures on
compensation for direct care and
support staff workforce is important for
CMS and the public in helping
determine whether Medicaid service
payments are economic and efficient, as
well as adequate to support sufficient
access for beneficiaries to high quality
care.
https://www.whitehouse.gov/briefing-room/
statements-releases/2023/09/01/fact-sheet-biden-
harris-administration-takes-steps-to-crack-downon-nursing-homes-that-endanger-resident-safety/.
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ER10MY24.084</GPH>
483.35
483.35
ER10MY24.085</GPH>
Im lementation Date
Phase 1: 90-days after the publication date of the fmal
rule
Phase 2: 2 ears after the ublication date of the fmal rule
Phase 3: 3 ears after the ublication date of the fmal rule
§ 483.71
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Federal Register / Vol. 89, No. 92 / Friday, May 10, 2024 / Rules and Regulations
D. Consultation With State Agencies
and Other Organizations
Section 1863 of the Act (42 U.S.C.
1395z), requires the Secretary to consult
with appropriate State agencies and
recognized national listing or
accrediting bodies, and appropriate
local agencies, in relation to the
determination of conditions of
participation for providers of services.
We held two listening sessions on June
27, 2022, and August 29, 2022, to allow
all stakeholders, including State
agencies and other organizations, to
voice their concerns about the impact of
a staffing standard, and took into
consideration comments provided by
State agencies.
Pursuant to section 1863 of the Act,
in addition to publishing the proposed
rule in order to solicit the views of
States, we received comments from 11
State and local government
organizations.
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III. Medicaid Institutional Payment
Transparency Reporting Provision
(§§ 438.72 and 442.43)
A. General
In response to concerns about
transparency in the use of Medicaid
payments and chronic understaffing in
Medicaid institutional services
(discussed in detail in our proposed rule
at 88 FR 61381 through 61384), we
proposed new Federal requirements to
promote public transparency around
States’ statutory obligation under
section 1902(a)(30)(A) of the Social
Security Act (the Act) and around the
quality requirements in section 1932(c)
of the Act for services furnished through
managed care organizations (MCOs) and
prepaid inpatient health plans (PIHPs)
under our authority under section
1902(a)(4) of the Act.81 Specifically, we
proposed to add new Federal
requirements to promote better
understanding and transparency related
to the percentages of Medicaid
payments for nursing facility and
Intermediate Care Facilities for
Individuals with Intellectual Disabilities
(ICF/IID) services that are spent on
compensation to direct care workers and
support staff. As noted in 88 FR 61382,
this proposal was specific to nursing
facility and ICF/IID services, which we
at times may refer to collectively in this
preamble as ‘‘institutional services.’’ We
also noted in 88 FR 61382 that unlike
in sections I. and II. of this rule, we will
not be referring to LTC facilities, as this
section (section III. of the final rule)
81 Throughout this section, section III. of the final
rule, the use of the term ‘‘managed care plan’’
means managed care organization (MCOs) and
prepaid inpatient health plans (PIHPs).
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focuses on Medicaid-certified nursing
facilities and ICFs/IID, which are not
referred to as LTC facilities. As
discussed in the proposed rule at 88 FR
61383, we relied on several sections of
the Act for our authority to propose
these reporting requirements. Section
1902(a)(30)(A) of the Act requires State
Medicaid programs to ensure that
payments to providers are consistent
with efficiency, economy, and quality of
care and are sufficient to enlist enough
providers so that care and services are
available to beneficiaries at least to the
extent as to the general population in
the same geographic area. Section
1902(a)(6) of the Act requires State
Medicaid agencies to make such reports,
in such form and containing such
information, as the Secretary may from
time to time require, and to comply with
such provisions as the Secretary may
find necessary to assure the correctness
and verification of such reports.
Under our authority at section
1902(a)(6) of the Act, and consistent
with section 1902(a)(30)(A) of the Act,
we proposed at § 442.43 to newly
require that State Medicaid agencies
report, at the facility level, on the
percent of payments for nursing facility
and ICF/IID services that are spent on
compensation for the direct care and
support staff workforce. While some
States have voluntarily established
similar transparency policies or
initiatives, we noted our belief that a
Federal requirement is necessary and
would be more effective to generate
more meaningful and comparable data
and support transparency nationwide.
As discussed in our proposed rule at
88 FR 63184, we proposed that the
reporting requirement at § 442.43 would
apply not only to services provided
under a fee for service (FFS) delivery
system, but also when long-term
services and supports (LTSS) systems
are covered through managed care. For
States that contract with MCOs and
PIHPs to cover services delivered by
nursing facilities and ICFs/IID, we
proposed that States report annually on
the percent of payments made to
nursing facilities and ICFs/IID that is
spent for compensation to direct care
workers and support staff. Section
1932(c) of the Act lays out quality
assurance standards with which States
must comply when delivering Medicaid
services through MCOs. This includes
services delivered by MCOs authorized
under section 1932(c), which requires
the Secretary to both monitor States and
consult with States on strategies to
ensure quality of care. Additionally,
based on our authority under section
1902(a)(4) of the Act to specify methods
of administration that are necessary for
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proper and efficient administration of
the State plan, we also proposed to
apply the requirement to services
delivered by PIHPs.
In addition, while we noted in the
proposed rule at 88 FR 61383 that our
proposal focused on institutional
services, this proposal (which is being
finalized in this rule) is consistent with
efforts to address the sufficiency of
payments for HCBS to direct care
workers and access to and the quality of
services received by beneficiaries of
HCBS finalized in the Ensuring Access
to Medicaid Services final rule
published elsewhere in this Federal
Register.
We received comments on our
proposal. The following is a summary of
these comments and our responses.
Comment: A number of commenters
expressed broad support for the
proposal to require States to report on
the percent of Medicaid payments that
nursing facilities and ICFs/IID are
spending on compensation to direct care
workers and support staff, and to make
this information publicly available.
Many of these commenters expressed
concerns about low worker wages and
chronic understaffing; a few
commenters noted that low wages to
institutional direct care workers and
support staff have a disproportionate
impact on women and people of color
who make up a large proportion of this
workforce. Many supportive
commenters noted that collecting these
data will help demonstrate the links
between Medicaid payment rates,
worker compensation, staffing levels,
and quality of care. Commenters noted
that more transparency and
accountability in the use of Medicaid
funds may address public mistrust of
how facilities are spending Medicaid
payments, empower beneficiaries to
advocate for more investment in quality
care, and ensure public resources are
being allocated for adequate staffing
levels, wages, and benefits.
A few commenters provided
anecdotal examples of when facilities
have received temporary or long-term
rate increases, but the increases were
not passed along to staff. A few
commenters noted that while interested
parties might cite low Medicaid
payment rates as a barrier to fair
compensation, there is inadequate
evidence to support this statement due
to the lack of transparent and uniform
reporting on Medicaid payment rates;
these commenters indicated that a
reporting requirement could help clarify
concerns regarding the sufficiency of
Medicaid payment rates.
A few commenters noted that this
information could be useful to
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researchers and policymakers. One
commenter noted this proposal would
create a better understanding around
compensation differences across States,
which will help to inform future policy
improvements and help policymakers
better understand where to target
interventions for facilities that are
outliers in terms of workforce
compensation that may affect the
quality and quantity of care provided to
residents.
Response: We thank commenters for
their support.
Comment: A number of commenters
did not support finalizing the proposed
reporting requirement, although many
expressed general support for the
principle of payment transparency.
Many of these commenters indicated
that the reporting requirement would
pose an unreasonable burden on State
Medicaid agencies and nursing facilities
and ICFs/IDD. One commenter noted
that the requirements might have a
disproportionate negative impact on
smaller facilities that have fewer
streamlined administrative processes.
A number of commenters representing
both nursing facilities and ICFs/IID
raised concerns that the proposal did
not directly address Medicaid payment
rates, which commenters believed are
insufficient to support high-quality care
or increases in direct care worker and
support staff compensation; some of
these commenters asked that we not
finalize this proposal and instead
propose requirements that States must
regularly review Medicaid payment
rates. Some of these commenters also
suggested that without an increase in
Medicaid payment rates to help offset
the additional administrative burdens
associated with reporting, facilities may
have to redirect resources away from
training and supervision, or some
facilities may close.
A few commenters noted that the
requirements as proposed, particularly
the definition of direct care worker and
reporting timeframes, do not align with
current reporting requirements in the
commenters’ respective States. The
commenters asked that we either not
finalize the proposed provision or that
we analyze existing State reporting
requirements to ensure that any new
Federal reporting requirements are not
duplicative or misaligned with State
reporting.
A few commenters representing ICFs/
IID suggested finalization of the
proposed requirements be delayed until
we take into consideration differences
between ICFs/IID and nursing facilities.
These commenters stated that
differences include variations in size,
location, and physical layout; staff
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responsibilities; and services offered to
residents, including active treatment
and community engagement. A few
commenters suggested that ICFs/IID
should be exempted from the
requirements if they are finalized.
Response: We acknowledge that
complying with this reporting
requirement will necessitate the use of
resources and time on the part of
providers and States. We believe that
the value of the data collected through
their efforts makes this use of resources
and time worthwhile. As discussed
further in this section, we are finalizing
our definitions of compensation and
direct care workers at § 442.43(a) with
modifications to better account for the
costs of clinical supervision, training,
and other expenses that are essential to
high-quality care. Additionally, as
discussed further in this section, we are
finalizing our proposal at § 442.43(b) to
require only aggregated data reported at
the facility level and by worker category
(direct care worker or support staff),
which we believe will limit burden on
both providers and States.
We believe that, generally speaking,
States and providers should already
have information about the amount of
Medicaid payments providers receive
for specific services, and that providers
likely already track expenditures for
wages and benefits for their workers. We
also believe that the aggregated
reporting will be easier for States to
validate and incorporate into their
existing auditing processes.
While section 1902(a)(30)(A) of the
Act does not provide us with authority
to require specific payment rates or rate
methodologies, section 1902(a)(30)(A) of
the Act does provide us with authority
to oversee that States assure that
payments are consistent with efficiency,
economy, and quality of care and are
sufficient to enlist enough providers so
that care and services are available
under the plan, at least to the extent that
such care and services are available to
the general population in the geographic
area.
For managed care, section
1932(c)(1)(A)(ii) of the Act similarly
does not speak explicitly to Medicaid
provider payment rates but requires that
States’ quality strategies include an
examination of other aspects of care and
service directly related to the
improvement of quality of care. Further,
section 1932(c)(1)(A)(iii) of the Act
authorizes the proposals being finalized
in this section of this final rule, which
enable States to compare payment data
among managed care plans in their
program; this could provide useful data
to fulfill their statutory obligations for
monitoring and evaluating quality and
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40915
appropriateness of care. This authority
under section 1932(c)(1)(A)(ii) and (iii)
of the Act is extended to PIHPs through
our authority under section 1902(a)(4) of
the Act.
We will be making the reporting
methodology and reporting template for
the requirements finalized at § 442.43
available for public comment through
the Paperwork Reduction Act notice and
comment process, which will give the
public the opportunity to provide
specific feedback and help us align the
methodology and reporting process with
existing State practices to the greatest
extent possible. However, we
acknowledge that because State
processes, timelines, and definitions
vary, it may not be possible to align all
details of the reporting process with
existing practices in multiple States. We
therefore plan to provide technical
assistance, as needed, to facilitate
further alignment with States’ current
reporting practices, to the greatest extent
possible.
We decline to exclude ICFs/IID from
the reporting requirement, as we do not
believe such an exclusion would be
warranted. We note that specific
concerns related to ICF/IID reporting are
addressed throughout section III. of this
final rule.
Comment: One commenter stated that
we already collect multiple data sets
that could be used to approximate the
information that would be subject to the
proposed reporting requirement,
including: direct care salary, benefits,
and hours for freestanding nursing
facilities using the Medicare Cost
Report; Medicaid fee-for-service per
diems in upper payment limit reporting;
and quarterly supplemental payment
information through the Medicaid
Budget and Expenditure Systems
(MBES) and in CMS–64 reports. This
commenter stated that we should use
existing Federal data to approximate the
proposed metrics, which the commenter
believed would reduce administrative
burden and ensure consistent
calculations across Medicaid programs.
A few commenters noted that facilities
already complete cost reports and
suggested that researchers and
regulators interested in Medicaid
expenditures could obtain spending
information from these cost reports.
One commenter stated that Medicaid
wage and benefit data are available in
some States while Medicaid financial
data are not available in other States; the
commenter stated that while it would be
ideal to have more detailed information
on wages and benefits, the commenter
did not believe that most State Medicaid
programs would have this information
available without developing a more
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comprehensive financial reporting
system.
Response: We disagree that these data
are readily available from existing data
sources currently collected by CMS. The
data sources that the commenter listed
would not provide information about
Medicaid revenues at the facility level.
We note, for instance, that the Medicare
Cost Reports do not break out Medicaid
revenues, nor are they completed by
providers who do not bill Medicare.
Other data sources cited by the
commenters, such as the upper payment
limit (UPL) reporting and quarterly
supplemental payment information are
data collection efforts related to
provider payments that are intended for
a different purpose and do not provide
the information we intend to capture
with the reporting requirement at
§ 442.43. We also note the supplemental
payment reporting data does not capture
the whole provider payment (that is,
base plus supplemental payments).
Additionally, the UPL reporting
provides estimates of Medicaid
payments to facilities; States have
flexibility in how they calculate their
UPL, using the best and most recent
data available to the State either through
Medicare cost reports or State-specific
cost reports.
We also disagree that nationally
comparable data could be extrapolated
from current cost reports, given the
variations among cost reporting forms,
practices, and delivery systems. A
number of States do not make cost
reporting data readily available to the
public in a way that facilitates easy
analysis.
We agree with the commenter who
observed that data are not consistently
available from all States. As discussed
throughout this section (section III. of
the final rule), we have designed the
requirement to promote greater
consistency and transparency while also
attempting to minimize burden for
States, particularly those States with
less experience collecting and tracking
wage data, as well as for providers.
Comment: A few commenters did not
believe that the reporting requirement as
proposed would yield consistent or
fully transparent data, given the
differences among facilities, their
payment models, current reporting
practices, case mixes, size, geographical
location, staffing requirements, and staff
roles. A few commenters also noted that
States have different wage laws that
could impact the percent of Medicaid
payments that facilities allocate to direct
care worker and support staff
compensation.
Response: We believe the diversity
among facilities and State reporting
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practices and employment laws is why
a broad, national reporting requirement
is necessary to help establish baseline
data measuring investment in the direct
care and support workforce. We note
that the requirement is constructed so
that States will report an aggregate
percentage that will allow for national
comparisons, as well as facility-level
data that will allow for more granular
differences among facilities to be
identified.
Comment: A few commenters
expressed concern that the reporting
requirement would result in the
generation of misleading data and
perpetuate the idea that facilities’
expenditures on any expenses other
than direct care worker compensation
are invalid or go only to profit. A few
of these commenters suggested that
facilities use Medicaid payments for a
variety of expenses such as providing
residents with private rooms, improving
facility ventilation, evaluating and
testing emergency preparedness plans,
and other non-compensation activities
that improve residents’ care and safety.
These commenters expressed concerns
that reporting on the percent of
Medicaid payments going only to
compensation for direct care workers or
support staff would lead policymakers
to draw erroneous conclusions about
facilities’ expenditures and discourage
increased investment in long-term care
or the raising of Medicaid rates. One
commenter expressed opposition to
what they regarded as an underlying
assumption that facilities are not
allowed to be profitable.
Response: The purpose of this
requirement is not to suggest that all
non-compensation facility expenditures
(including profits that may incentivize
the operation of a facility) are invalid,
or that any particular such expenditure
is not worthwhile. Specifically, we are
not suggesting that by designating
certain activities as administrative and
by not considering certain expenditures
as compensation under this rule, they
are inessential. Rather, we believe, as
has been discussed at length in the
proposed rule at 88 FR 61381 through
61382, that understaffing in facilities is
well-documented and chronic and poses
a risk to the quality of care. As a result,
we have made addressing compensation
for institutional direct care workers and
support staff a particular focus of this
requirement. We also remind
commenters that the purpose of this rule
is to create a reporting requirement, not
to require that a certain amount of the
Medicaid payment be allocated to
compensation. We believe that gathering
data on what percent of Medicaid
payments facilities are spending on
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compensation will help us understand
what percent of Medicaid payments is
also needed for non-compensation costs,
which we understand includes many
essential activities.
Comment: A few commenters
expressed concerns that residents would
not find the data helpful in making
decisions about their long-term care and
that beneficiaries and residents can
already get valuable information about
nursing facilities from Nursing Home
Compare.
Response: We disagree that
beneficiaries would not find the data
helpful and note that some commenters
expressed the contrary view that these
data can help beneficiaries advocate for
high-quality care. While we agree that
Nursing Home Compare provides
beneficiaries with useful information
about nursing facilities, Nursing Home
Compare does not include data on how
much facilities spend on compensation
to direct care workers and support
staff.82 We believe that facility-level
data on the percent of Medicaid
payments spent on direct care worker
and support staff compensation will be
a useful complement to the facility-level
quality data in Nursing Home Compare
and help make available more
comprehensive information on nursing
facilities for beneficiaries and other
members of the public.
Comment: One commenter requested
that this requirement be made a
Condition of Participation for nursing
facilities to encourage compliance and
to allow the information to be included
in Nursing Home Compare.
Response: We decline to make the
reporting requirement a Condition of
Participation at this time. We note that
the provision being finalized at § 442.43
is a requirement that must be followed
by States and does not directly impose
requirements on providers. We believe
it is important to first develop the
reporting process and acclimate States
and providers to this requirement before
considering making it a Condition of
Participation for providers, although we
may consider proposing to do so at a
later time.
Comment: A few commenters noted
that the proposed requirement could
help assess the extent to which facilities
with a large Medicaid population have
challenges achieving compliance with
the minimum staffing standards
finalized in section II. of this final rule.
Response: We agree that facility-level
data reported by States could help
82 To view what information is available on
Nursing Home Compare, visit the Nursing Home
Compare website at: https://www.medicare.gov/
care-compare/?redirect=true&providerType=
NursingHome.
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identify facilities that are outliers in
terms of allocating Medicaid payments
for compensation for direct care workers
and support staff, which could be
relevant when examining understaffing
or staff turnover at certain facilities. We
also note that our intention with the
reporting requirement at § 442.43 is to
align with a similar reporting
requirement focused on the percent of
Medicaid payments for certain home
and community-based services (HCBS)
spent on compensation for direct care
workers finalized in the Ensuring
Access to Medicaid Services final rule
published elsewhere in this Federal
Register. These aligned requirements
will provide a more consistent picture
of compensation to the direct care
workforce providing services to
individuals receiving Medicaid-covered
LTSS across settings.
Comment: One commenter asked that
ICFs/IID be exempted from the
minimum staffing standards.
Response: We clarify that while the
provision at § 442.43 being finalized in
this section (section III. of this final
rule) applies to ICFs/IID, the minimum
staffing standards being finalized in
section II. of this final rule do not apply
to ICFs/IID.
B. Definition of Compensation
At § 442.43(a)(1), we proposed to
define compensation to include salary,
wages, and other remuneration, as those
terms are defined by the Fair Labor
Standards Act (FLSA) and
implementing regulations (29 U.S.C. 201
et seq., 29 CFR parts 531 and 778), and
benefits (such as health and dental
benefits, sick leave, and tuition
reimbursement). In addition, we
proposed to define compensation to
include the employer share of payroll
taxes for direct care workers and
support staff delivering Medicaidcovered nursing facility and ICF/IID
services (which, while not necessarily
paid directly to the workers, is paid on
their behalf). We considered whether to
include training or other costs in our
proposed definition of compensation.
However, we believed that a definition
that more directly addresses the
financial benefits to workers would
better measure the portion of the
payment for services that went to direct
care workers and support staff, as it is
unclear that the cost of training and
other workforce activities is an
appropriate way to quantify the benefit
of those activities for workers. We were
also concerned that requesting providers
to quantify and include costs of nonfinancial benefits in their reporting
would prove burdensome and could
introduce a lack of uniformity in
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determining and reporting related costs.
We requested comment on our proposed
definition of compensation, particularly
whether the definition of compensation
should include other specific financial
and non-financial forms of
compensation for the workers included
in the proposed provisions.
We received comments on our
proposal. The following is a summary of
these comments and our responses.
Comment: Several commenters
supported our definition of
compensation.
Response: We thank the commenters
for their support.
Comment: One commenter suggested
that we align the definition with items
normally reported on Internal Revenue
Service (IRS) form W–2.
Response: We decline to make
modifications to the proposed definition
of compensation based on this
comment. We believe the proposed
definition encompasses the relevant
compensation items that would be
captured on a W–2 form, including the
employee’s salary, wages, other
remuneration, benefits, and information
about payroll taxes.
Comment: One commenter suggested
we add differential pay and incentives
to the definition of compensation.
Response: We are not certain what
type of ‘‘incentives’’ the commenter was
referring to. Our definition of
compensation as proposed at
§ 442.43(a)(1) includes salary, wages,
and other remuneration as defined by
the FLSA and its regulations. The
Department of Labor has advised that
shift differential pay and
nondiscretionary bonuses in health care
settings are included within the
definition of salary, wages, and other
remuneration under the FLSA.83 Nondiscretionary bonuses 84 include those
that are announced to employees to
encourage them to work more steadily,
rapidly or efficiently, and bonuses
designed to encourage employees to
remain with a facility.85 Generally, we
intended for the definition at
§ 442.43(a)(1) to include most types of
payments made directly to direct care
workers or support staff as salary,
wages, and remuneration; we will
provide technical assistance as needed
for questions regarding specific types of
payments.
83 Refer to U.S. Department of Labor, Fact Sheet
#54—The Health Care Industry and Calculating
Overtime Pay. https://www.dol.gov/agencies/whd/
fact-sheets/54-healthcare-overtime.
84 The Department of Labor has advised that few
bonuses are discretionary under the FLSA. Id.
85 See regulations 29 CFR 778.200 and 778.208 for
more information.
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Comment: One commenter, while
expressing support for the proposed
definition of compensation, noted the
importance of including medical,
dental, and vision benefits, and
retirement plans. A few commenters
suggested we add paid leave and
vacation time to the definition of
compensation.
Response: We believe that all the
items identified by these commenters—
medical, dental and vision benefits,
retirement, and paid time off—are either
explicitly included in the proposed
definition or would be reasonably
considered part of benefits for the
purpose of compensation.
In its glossary, the Bureau of Labor
Statistics (BLS) defines compensation as
‘‘employer costs for wages, salaries, and
employee benefits,’’ and notes that the
National Compensation Survey includes
the following categories in employee
benefits: insurance (life insurance,
health benefits, short-term disability,
and long-term disability insurance);
paid leave (vacations, holidays, and sick
leave); and retirement (defined benefit
and defined contribution plans).86 We
believe the items suggested by the
commenters align with our intent and
are reflected by a common
understanding of ‘‘benefits’’ as
exemplified in the BLS glossary.
We are finalizing the definition of
‘‘benefits’’ at § 442.43(a)(1)(ii) with
several modifications that we believe
will help clarify what is included in the
definition, will better align the
definition with what is referenced in the
BLS glossary, and will align this
definition with a definition of
compensation in a similar compensation
reporting requirement finalized at
§ 441.311(e) as part of the Ensuring
Access to Medicaid Services final rule
published elsewhere in this Federal
Register. The purpose of aligning these
requirements is to provide a more
consistent picture of investment in the
direct care workforce providing
Medicaid-covered LTSS across settings.
We are retaining ‘‘health and dental
benefits’’ but also adding to the list ‘‘life
and disability insurance’’ to reflect the
examples of insurance included in the
BLS glossary. (We are using ‘‘disability
insurance’’ to refer to short- or long-term
disability insurance.) We note that the
proposed definition at § 441.43(a)(1)(ii)
already included health insurance,
which we believe can be regarded as the
same as medical benefits. The proposed
definition also already included dental
benefits. While we decline to specify
vision benefits in this definition, which
86 See BLS ‘‘Glossary’’ at https://www.bls.gov/bls/
glossary.htm.
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were not included in the proposal and
is not part of the BLS glossary definition
as a separate item from ‘‘health
benefits,’’ we note that the list of
benefits provided in § 442.43(a)(1)(ii) is
not exhaustive, and that vision benefits,
when offered by an employer, would
reasonably be considered as part of
compensation.
We are also changing ‘‘sick leave’’ to
the broader term ‘‘paid leave,’’ as this
should be understood to cover any time
for which the employee is paid, whether
it be for sick leave, holidays, vacations,
and so forth. We are also adding
retirement, which we believe is also a
useful blanket term for different types of
retirement plans or contributions on the
employee’s behalf.
Thus, § 442.43(a)(1)(ii) as finalized in
this final rule specifies that
compensation includes benefits, such as
health and dental benefits, life and
disability insurance, paid leave,
retirement, and tuition reimbursement.
Comment: A few commenters, while
not clearly requesting that these benefits
be added to the definition of
compensation, noted a number of
benefits that employers may offer that
may be difficult to quantify if they were
to be included in reporting. These
benefits included: recruitment and
retention activities, gym fees, pet
insurance, employee wellness programs,
childcare support, nutrition programs,
and assistance for staff experiencing
financial shortfalls.
One commenter believed that
including additional benefits in the
definition of compensation would
undermine the purpose of the
requirement, which the commenter
believed should focus on direct
payments to workers.
Response: We are not making
additional modifications to the benefits
definition listed at § 442.43(a)(1)(ii)
beyond what we described in the prior
response. When proposing that benefits
be included in the definition of
compensation, we intentionally
included the phrase ‘‘such as’’ when
describing benefits to indicate that the
example of benefits provided in the
definition is not exhaustive. We did not
attempt to list all possible benefits in
the regulatory definition, as we run the
risk of creating a definition that is too
narrow.
However, we note that some of the
items listed previously, such as
employee wellness programs, which
make available non-financial assistance
to all employees (rather than being a
specific financial benefit for the
employee) would qualify as
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administrative expenses.87 We plan to
provide technical assistance to States to
help ensure that States understand what
are considered administrative expenses
versus compensation expenses.
Comment: A few commenters noted
specific support for including the
employer share of payroll taxes in the
compensation definition, as this is also
an important component of the full
compensation cost. One commenter
suggested that the definition should
include worker’s compensation taxes.
Response: It is our intention to
include employers’ payroll tax
contributions for worker’s compensation
(as well as other payments required by
the Federal Insurance Compensation
Act) under § 442.43(a)(1)(iii) (and thus
as part of the definition of
compensation). While not necessarily
paid directly to the workers, these
expenses are paid on their behalf. We
also note, for instance, that per the BLS,
the National Compensation Survey calls
payroll taxes for worker’s compensation
‘‘legally mandated employee benefits’’
and includes them as part of the
definition of ‘‘employee benefits’’ for
the purposes of determining
compensation.88 We decline to make
changes in this final rule based on these
comments, but we plan to provide
technical assistance to States on how to
help ensure that providers are including
payroll tax contributions for worker’s
compensation, as well as contributions
for other payroll taxes such as
unemployment insurance, when
reporting on compensation to workers.
Comment: A few commenters
suggested that we add training costs to
the definition of compensation, and a
few commenters expressed specific
concerns that the cost of specialized
training for ICF/IID staff was not
included in the definition of
compensation. Commenters noted that
training is a critical element of
providing care.
In contrast, a commenter noted that
attempting to disclose and quantify nonfinancial compensation forms would
make reporting confusing and
cumbersome and could lead to
variations in reporting among States that
would undermine the goal of uniform
reporting. Another commenter agreed
that we should not include training
costs in the definition of compensation;
the commenter noted that nursing
87 See 29 CFR 778.224(b) (describing various
workplace perks which are not considered
employee compensation when calculating overtime
pay under the FLSA, such as the cost to an
employer that provides gym memberships, wellness
programs, or nutrition programs).
88 See BLS ‘‘Glossary’’ at https://www.bls.gov/bls/
glossary.htm.
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facilities are generally required to pay
the costs for training required for
certification of nurse aides but may then
be reimbursed for the costs through a
variety of payment methods or State
grants. The commenter also noted that
some facilities may choose to offer
additional training as part of a collective
bargaining agreement or to help reduce
worker turnover, but did not believe the
related costs should be considered part
of the compensation package for
workers.
A commenter asked that we add
mileage reimbursement to cover the
costs to deliver services in various
locations.
Response: We clarify that the time
direct care workers spend in training
would already be accounted for in the
definition of compensation. We agree
with commenters that training is critical
to the quality of services, and that some
facilities, due to the needs of the
residents, may require specialized
training. We do not want to encourage
providers to reduce training to cut
administrative costs. We also agree that
training costs may be difficult to
standardize and are further complicated
by the fact that some facilities may
receive funding for training of some staff
from sources other than their Medicaid
payments.
We remain reluctant, upon
considering comments, to treat all
training costs as ‘‘compensation’’ to the
direct care worker or support staff.
Trainings are often required as part of
the job and may vary depending on the
services or the needs of the beneficiaries
they serve. We are concerned that
including training costs in the definition
of compensation could mean that direct
care workers with higher training
requirements would see more of their
‘‘compensation’’ going to training
expenses, which could cause them to be
regarded as more highly compensated
while receiving lower take-home pay
than colleagues with fewer training
requirements.
Rather than include training costs in
the definition of ‘‘compensation,’’ we
are creating a new § 442.43(a)(4) for the
purposes of the reporting requirement in
§ 442.43 to define ‘‘excluded costs.’’
Excluded costs are those that are not
included in the calculation of the
percentage of Medicaid payments that is
spent on compensation for direct care
workers and support staff. We are
specifying at § 442.43(a)(4)(i) that
required training costs (such as costs for
qualified trainers and training materials)
reasonably associated with Medicaidcovered nursing facility or ICF/IID
services are excluded from the
calculation of the percent of Medicaid
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payments to providers that is spent on
compensation for direct care workers
and support staff. This means that,
unless providers receive payment for
trainings from sources other than their
Medicaid payments for nursing facility
or ICF/IID services, providers could
deduct the total eligible training
expenses for direct care workers and
support staff reasonably associated with
delivering Medicaid-covered nursing
facility or ICF/IID services from the
provider’s total Medicaid payments
before the compensation percentage is
determined. We note that in facilities
that also serve residents whose services
are covered by non-Medicaid payment
sources, we expect that the facility
would calculate the excluded costs by
estimating the percent of total eligible
training expenses reasonably associated
with providing Medicaid-covered
nursing facility or ICF/IID services,
based on the percent of the facility’s
residents whose care is primarily paid
for by Medicaid.
Similarly, we do not agree that
mileage reimbursement or travel should
be considered compensation to direct
care workers and support staff. Since
the reporting provision at § 442.43
pertains to facility-based services, we do
not believe that travel expenses for
direct care workers and support staff are
necessarily high for a significant portion
of facilities. However, we also
acknowledge that there are reasons why
facilities may need to require staff to
travel as part of their duties, particularly
in rural or smaller facilities or some
ICFs/IID, which might require staff to
transport beneficiaries to activities and
appointments, assist beneficiaries in the
community, or travel between facilities
that are operated by the same provider.
In these cases, the travel would not be
for the direct care worker or support
staff’s personal benefit.89 We also agree
that travel costs will vary significantly
by facility, depending on the facility
size, staff makeup, nature of the services
provided, and the beneficiaries served.
We are concerned that including travel
in the definition of compensation could
mean that direct care workers or support
staff with higher travel demands would
see more of their compensation going to
travel, which could cause them to be
regarded as more highly compensated
while receiving lower take-home pay
than colleagues with lower travel
demands.
To preserve beneficiary access to
services (and access to the community
89 See 29 U.S.C. 207(e)(2) (permitting employers
to exclude ‘‘reasonable payments for traveling
expenses’’ when determining an employee’s regular
rate of pay under the FLSA); see also 29 CFR
778.217 (same).
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for facility residents) and avoid burden
or disparate impact on beneficiaries,
direct care workers, support staff, and
providers in rural or underserved areas,
we are excluding travel costs reasonably
associated with providing Medicaidcovered nursing facility or ICF/IID
services in this final rule from the
calculation of the percent of Medicaid
payments for nursing facility or ICF/IID
services going to compensation for
direct care workers and support staff.
This means that providers could deduct
the total eligible travel costs for direct
care workers and support staff
reasonably associated with delivering
Medicaid-covered nursing facility or
ICF/IID services from the provider’s
total Medicaid payments before the
compensation percentage is determined.
We note that in facilities that also serve
residents whose services are covered by
non-Medicaid payment sources, we
expect that the facility would calculate
the excluded costs by estimating the
percent of total eligible travel expenses
reasonably associated with providing
Medicaid-covered nursing facility or
ICF/IID services, based on the percent of
the facility’s residents whose care is
primarily paid for by Medicaid.
To reflect the exclusion of travel costs
from the payment calculation, we are
adding a new § 442.43(a)(4)(ii) that
specifies that travel costs for direct care
workers and support staff (such as
mileage reimbursements and public
transportation subsidies) are considered
an excluded cost for the purposes of the
calculation at § 442.43(c).
We note that the finalization of
excluded costs for training and travel at
§ 442.43(a)(4) aligns with the definition
of excluded costs finalized at
§ 441.311(e)(1)(iii) as part of the
Ensuring Access to Medicaid Services
published elsewhere in this Federal
Register. This definition also excludes
training and travel costs from the
calculation of the percentage of
Medicaid payments for certain HCBS
being spent on compensation for direct
care workers. We reiterate that we
believe alignment between these
reporting provisions in §§ 442.311(e)
and 442.43 is important to provide a
more consistent picture of investment in
the direct care workforce providing
Medicaid-covered LTSS across settings.
Comment: While not necessarily
asking that we account for personal
protective equipment (PPE) in the
reporting requirement, many
commenters wrote about the importance
of PPE in facility-based settings. Many
of these commenters were self-identified
direct care workers or other staff
working in facilities and shared
frustrations with not having sufficient
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40919
PPE during (and even after) the COVID–
19 Public Health Emergency (PHE). A
few of these commenters also noted
specific concerns regarding
administrative staff’s access to PPE; one
commenter, who self-identified as a
receptionist in a nursing facility, shared
an experience of being asked to interact
with residents during the COVID–19
PHE without being provided PPE.
Response: We believe that these
comments serve as an important
reminder, especially given the recent
experience with the COVID–19 PHE,
that PPE should be treated as essential
to supporting direct care workers and
support staff’s ability to perform their
duties on par with training and travel.
Providing direct care workers and
support staff with adequate PPE is
critical for the health and safety of both
the workers and the beneficiaries they
serve. We also do not believe that direct
care workers or support staff should
have to pay for PPE out-of-pocket or that
it should be considered part of their
compensation. We also note that due to
the enclosed environment of many
facilities, providing PPE to all staff is
critical for maintaining health and
safety for all staff and beneficiaries.
Similar to our approach with travel
and training, we are also finalizing a
new § 442.43(a)(4)(iii) to exclude costs
for PPE reasonably associated with
providing Medicaid-covered nursing
facility or ICF/IID services. We note that
this is consistent with an exclusion of
PPE costs finalized at § 441.311(e)(1)(iii)
in the Ensuring Access to Medicaid
Services final rule published elsewhere
in this Federal Register.
We are excluding PPE costs for
facility staff reasonably associated with
providing Medicaid-covered nursing
facility or ICF/IID services in this final
rule from the calculation of the percent
of Medicaid payments for nursing
facility or ICF/IID services going to
compensation for direct care workers
and support staff. This would mean that
providers could deduct the total eligible
PPE expenses for their facilities
reasonably associated with delivering
Medicaid-covered nursing facility or
ICF/IID services from the provider’s
total Medicaid payments before the
compensation percentage is determined.
We note that in facilities that also serve
residents whose services are covered by
non-Medicaid payment sources, we
expect that the facility would calculate
the excluded costs by estimating the
percent of total eligible PPE expenses
reasonably associated with providing
Medicaid-covered nursing facility or
ICF/IID services, based on the percent of
the facility’s residents whose care is
primarily paid for by Medicaid.
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To reflect the exclusion of PPE costs
from the payment calculation, we are
adding a new § 442.43(a)(4)(iii) that
specifies that a provider’s PPE costs
reasonably associated with providing
Medicaid-covered nursing facility and
ICF/IID services may be considered
excluded costs for the purposes of the
calculation at § 442.43(c).
After consideration of the comments,
we are finalizing § 442.43(a)(1)(i) and
(iii) as proposed. We are finalizing
§ 442.43(a)(1)(ii) with modifications to
specify that compensation includes
benefits, such as health and dental
benefits, life and disability insurance,
paid leave, retirement, and tuition
reimbursement.
We are also finalizing a new
definition at § 442.43(a)(4) to define
excluded costs, which are costs
reasonably associated with delivering
Medicaid-covered nursing facility or
ICF/IID services that are not included in
the calculation of the percentage of
Medicaid payments that is spent on
compensation for direct care workers
and support staff. Such costs are limited
to: costs of required trainings for direct
care workers and support staff (such as
costs for qualified trainers and training
materials); travel costs for direct care
workers and support staff (such as
mileage reimbursement or public
transportation subsidies); and costs of
personal protective equipment for
facility staff.
C. Definitions of Direct Care Workers
and Support Staff
At § 442.43(a)(2), for the purposes of
the proposed reporting provision at
§ 442.43(b), we proposed to define
direct care workers to include: nurses
(registered nurses, licensed practical
nurses, nurse practitioners, or clinical
nurse specialists) who provide nursing
services to Medicaid-eligible
individuals receiving nursing facility
and ICF/IID services; certified nurse
aides who provide such services under
the supervision of one of the foregoing
nurse provider types; licensed physical
therapists, occupational therapists,
speech-language pathologists, and
respiratory therapists; certified physical
therapy assistants, occupational therapy
assistants, speech-language therapy
assistants, and respiratory therapy
assistants or technicians; social workers;
personal care aides; medication
assistants, aides, and technicians;
feeding assistants; activities staff; and
other individuals who are paid to
provide clinical services, behavioral
supports, active treatment (as defined at
§ 483.440), or address activities of daily
living (such as those described in
§ 483.24(b), which includes activities
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related to mobility, personal hygiene,
eating, elimination, and
communication), for individuals
receiving Medicaid-covered nursing
facility and ICF/IID services. Our
proposed definition of direct care
worker was intended to broadly define
such workers to ensure that the
definition appropriately captured the
diversity of roles and titles that direct
care workers may have. For the reasons
discussed in the proposed rule (88 FR
61385), our proposed definition of
direct care worker differs from the
definition of direct care staff in LTC
facilities at § 483.70(q)(1), which was
established for the PBJ reporting
program at § 483.70(q). We requested
comment on whether we should adopt
the definition of direct care staff at
§ 483.70(q)(1), instead of our proposed
definition of direct care worker.
We requested feedback on our
proposed definition of direct care
worker at § 442.43(a)(2). We specifically
requested whether there are categories
of staff we should add to, or remove
from, our proposed definition. We
requested feedback from the public as to
whether our proposed definition
appropriately included workers who are
instrumental in helping residents
achieve the level of health or develop
skills needed to transition from facility
settings back into the community, assess
residents for readiness for transition,
and support in discharge planning, or if
these workers should be included as a
separate category.
At § 442.43(a)(3), for the purposes of
the proposed reporting requirement at
§ 442.43(b), we proposed to define
support staff to include individuals who
are not direct care workers and who
maintain the physical environment of
the care facility or support other
services (such as cooking or
housekeeping) for residents. Similar to
our proposed definition of direct care
worker, our proposed definition of
support staff was intended to broadly
define such workers to ensure that the
definition appropriately captures the
diversity of roles and titles that such
workers may have. Specifically, we
proposed to define support staff to
include: housekeepers; janitors and
environmental services workers;
groundskeepers; food service and
dietary workers; drivers responsible for
transporting residents; and any other
individuals who are not direct care
workers and who maintain the physical
environment of the care facility or
support other services for individuals
receiving Medicaid-covered nursing
facility and ICF/IID services. We
requested comment on whether there
are other specific types of workers, such
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as security guards, who should be
included in the definition. We also
solicited comment on whether any of
the types of workers listed in this
proposal should be excluded from the
definition of support staff. We also
requested comment, generally, on our
proposal to include support staff in this
proposed reporting requirement.
We also proposed in both
§ 442.43(a)(2) and (3) to define direct
care workers and support staff,
respectively, to include individuals
employed by or contracted or
subcontracted with a Medicaid provider
or State or local government agency.
This proposal was in recognition of the
varied ownership and employment
relationships that can exist in Medicaid
institutional services. For instance,
differences may include: institutions
that are privately owned and operated
or facilities owned and operated by a
local or State government; facilities that
are partially or wholly staffed through a
third-party staffing organization through
a contractual arrangement; or staff who
are employed directly or as independent
contractors. Additionally, a facility may
contract with, for example, a third-party
transportation company to provide
transportation services to residents. We
solicited comment on whether this
component of our proposed definition
adequately captures the universe of
potential employment or contractual
relationships between institutional
facilities and relevant direct care
workers and support staff.
We received comments on our
proposal. The following is a summary of
these comments and our responses.
Comment: A few commenters
expressed support for the definition of
direct care worker. A commenter noted
that the definition appears to capture
most, if not all, positions that provide
direct care to residents. Another
commenter supported the definition
because they believed it includes only
the staff who provide direct care
services to residents.
A commenter responded to our
comment solicitation on using the
definition of direct care staff at
§ 483.70(q)(1); this commenter did not
support using the definition of direct
care staff at § 483.70(q)(1) because it did
not align with the duties and
responsibilities of staff in ICFs/IID.
Response: We thank commenters for
their support. With the exception of a
few modifications noted later in this
section, we are finalizing the definition
of direct care worker that we proposed
at § 442.43(a)(2).
Comment: A commenter noted that
the examples of workers included in the
direct care worker definition include
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many workers who complement or
supplement shortfalls in registered
nurses and other long-term care staffing
and contribute to the quality of care.
This commenter supported the broad
definition of direct care worker
proposed at § 442.43(a)(2), and believed
that for consistency throughout this
final rule, these staff should count
towards any minimum staffing
requirement (which is discussed in
section II. of this final rule). Another
commenter requested that we clarify
that the direct care worker definition at
§ 443.42(a)(2) is broader than that used
in the proposed minimum staffing
standard and therefore is for the
purposes of this section only. A
commenter expressed concern that this
definition will lead some facilities to
treat the workers included in this direct
care worker definition interchangeably,
such as asking skilled clinicians to
perform unskilled services such as meal
delivery or personal hygiene services.
The commenter also raised a concern
that some facilities might
inappropriately substitute one type of
clinical specialty for another if a broad
direct care worker definition fails to
recognize the unique clinical skills of
each member of the multidisciplinary
care team.
Response: We clarify that the
definition proposed at § 442.43(a)(2) is
only for the purposes of the reporting
requirement being finalized in § 442.43
and is not to be used for the purposes
of the minimum staffing requirements
being finalized in section II. of this final
rule. We also note that the intent of this
requirement is to list the different staff
whose compensation must be included
in the numerator of the reported percent
of Medicaid payments being spent on
compensation. The intent is not to
define a single category of
interchangeable workers.
Comment: A commenter requested
that we clarify that the definition
excludes nurses who perform primarily
administrative tasks. A commenter
supported excluding administrative staff
who are primarily in a supervisory
position (such as a director of nursing)
or primarily completing paperwork
(such as nurses assigned to complete
Minimum Data Set paperwork) and
stated that the definition should include
only the services of hands-on, direct
care workers.
A commenter suggested we include
physicians and physician assistants in
the definition of direct care workers,
given the importance of these staff to
nursing facilities’ patient care. A
commenter stated that while they are
not recommending we add physicians
and physician assistants to the
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definition, they would like to know the
purpose of the data to understand why
these roles were excluded. A few
commenters also suggested we add
pharmacists.
Response: Consistent with the
proposed rule, our definition is
intended to exclude staff who perform
administrative tasks (such as overseeing
business operations) and whose primary
duty is to provide non-clinical
supervision to other staff.
Upon further consideration, we are
modifying our definition of direct care
worker at § 442.43(a)(2) to clarify that
the definition includes nurses or other
staff providing clinical supervision.
This modification is in recognition of
the importance of clinical supervision
in facility settings and to align with a
similar modification made to the direct
care worker definition finalized at
§ 441.311(e) in the Ensuring Access to
Medicaid Services final rule published
elsewhere in this Federal Register. (As
noted in our proposed rule at 88 FR
61385, we believe it is important to keep
the definitions of direct care workers in
this rule and the Ensuring Access to
Medicaid services rule as closely
aligned as possible.) We clarify that
nurses or other staff who provide
clinical oversight and training for direct
care staff (as allowed by their
professional license), participate in
activities directly related to provision of
beneficiary care (such as completing or
reviewing documentation of care), are
qualified to provide services directly to
beneficiaries, and periodically interact
with beneficiaries should be included in
the definition of direct care worker. In
some instances, this may also pertain to
physicians, physician assistants, or
pharmacists that meet the elements of
this description of nurses or other staff
who provide clinical supervision. We
decline to add physicians, physician
assistants, or pharmacists as additional
categories in the definition of direct care
worker because we want to keep the
definition focused on the staff that
commonly provide most of the direct
care in facilities.
We reiterate that our intention is to
align the reporting requirement at
§ 442.43 with similar reporting
requirements finalized in the Ensuring
Access to Medicaid Services final rule
published elsewhere in this Federal
Register, which focuses on
compensation rates for direct care
workers providing Medicaid HCBS. The
purpose of these aligned requirements is
to provide a more consistent picture of
the investment in the direct care
workforce providing Medicaid-covered
LTSS across settings.
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Comment: One commenter requested
clarification on whether Certified
Medication Aides were included in the
definition of direct care worker, and
suggested we add this job duty if it was
not included.
Response: We believe that a Certified
Medication Aide would likely fall under
the definition of direct care worker as
proposed at § 442.43(a)(2)(vii), which
specifies a medication assistant, aide, or
technician. We note that job titles at
facilities may vary, and States should
apply their best judgment when
determining if certain titles fit within
the definition of direct care worker at
§ 442.43(a)(2). We will also supply
technical assistance as needed.
Comment: A number of commenters
representing ICFs/IID were concerned
that Qualified Intellectual Disability
Professionals (QIDPs) were not included
in the definition. Commenters noted
that, in addition to being a required
position in ICFs/IID, QIDPs have
specialized training and are responsible
for care coordination and assessing,
monitoring, documenting, and ensuring
the provision of quality care to ICF/IID
residents.
Response: We acknowledge that ICFs/
IID are required at § 483.430(a) to be
staffed by a QIDP, who may be doctors,
nurses, or other professionals described
at § 483.430 with specialized training in
care for people with intellectual and
developmental disabilities. It is our
understanding that QIDPs’ roles may
vary in different States or even among
different facilities within a State. For
instance, some QIDPs may actively
participate in direct care while others
may take on more of an administrative
or care coordination role. We note that
the proposed definition of direct care
worker included a broad category
proposed at § 442.43(a)(2)(x) (but being
finalized at § 442.43(a)(2)(xi), as
discussed below), which specifies any
other individual who is paid to provide
clinical services, behavioral supports,
active treatment (as defined at
§ 483.440), or address activities of daily
living (such as those described in
§ 483.24(b)) for Medicaid-eligible
individuals receiving Medicaid services
under this part. We defer to States to
determine if the QIDPs working in their
ICFs/IID meet this definition or other
elements of the definition of direct care
worker at § 442.43(a)(2), and we have
not added this position explicitly to the
definition.
Comment: A number of commenters
representing ICFs/IID expressed concern
that Direct Support Professionals (DSPs)
were not included in the definition of
direct care worker. Commenters noted
that in many States, ‘‘Direct Support
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Professional’’ is a typical professional
designation and a critical position in
ICFs/IID; DSPs are often the staff that
provide direct, daily support to ICF/IID
residents. Commenters asked that we
add DSPs to the definition of direct care
worker at § 442.43(a)(2).
A few commenters noted that it may
cause confusion to exclude DSPs from
the definition of direct care worker in
§ 442.43(a)(2) when DSPs were included
in the definition of direct care worker in
the Ensuring Access to Medicaid
Services rule (as the definition was
proposed at 88 FR 27984). One
commenter recommended we include
DSPs in the definition at § 442.43(a)(2)
to align the definitions in the two rules
and acknowledge the role that DSPs
play in providing LTSS care across
settings.
Response: We are persuaded both by
the characterization of DSPs as direct
care workers and the concern that
omitting DSPs in the definition of direct
care worker at § 442.43(a)(2) would
misalign the definition with the
definition of direct care worker finalized
in the Ensuring Access to Medicaid
Services final rule published elsewhere
in this Federal Register. We reiterate, as
noted in prior responses, that our
intention is to align the reporting
requirement at § 442.43 with similar
reporting requirements finalized in the
Ensuring Access to Medicaid Services
final rule published elsewhere in this
Federal Register, which focuses on
compensation rates for direct care
workers providing HCBS. The purpose
of these aligned requirements is to
provide a more consistent picture of the
direct care workforce for individuals
receiving Medicaid-covered LTSS across
settings.
After consideration of the commenters
received, we are modifying the
definition of direct care worker at
§ 442.43(a)(2) to include DSPs.
Comment: A few commenters
responded to our comment solicitation
regarding whether we should add to the
definition staff who can be instrumental
in helping residents achieve the level of
health or develop skills needed to
transition from nursing facilities back
into the community, assess residents for
readiness for transition, and support in
discharge planning. A commenter
agreed that these staff duties should be
added to the definition. Another
commenter, however, stated that these
staff should only be added to the
definition if they are in a separate
category from direct care workers. The
commenter noted that these workers are
providing important services to improve
the residents’ health, safety, and
autonomy, but the job duties vary much
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more broadly than in the case of the
direct care workers identified in
§ 442.43(a)(2).
Response: Based on the comments
received, we are not modifying the
definition of direct care staff at
§ 442.43(a)(2) to include a specific
category of staff who provide transition
supports. Although a few commenters
were supportive of their inclusion as a
separate category, we were not
persuaded by the balance of the
comments that staff who provide these
supports are not already reflected in the
different categories of workers
contained in the definition. We also
want to ensure that the definition
focuses on workers who provide direct
care, rather than what in some cases
could be primarily administrative
support.
We note that the proposed definition
of direct care worker included a broad
category at § 442.43(a)(2)(x) (being
finalized at § 442.43(a)(2)(xi)), which
specifies any other individual who is
paid to provide clinical services,
behavioral supports, active treatment (as
defined at § 483.440), or address
activities of daily living (such as those
described in § 483.24(b)) for Medicaideligible individuals receiving Medicaid
services under this part. We defer to
States to determine if staff who provide
discharge planning or other transition
supports in facilities meet this
definition or other elements of the
definition of direct care worker at
§ 442.43(a)(2).
Comment: A number of commenters
requested that we divide the definition
of direct care worker into two
categories: a direct care worker category
and a category referred to as either
‘‘ancillary staff’’ or ‘‘licensed staff.’’
One group of commenters advocated
restricting the definition of direct care
workers to nursing staff and
recommended defining direct care
workers as registered nurses, licensed
practical nurses, and certified nursing
assistants—a list they believed would
align with the staff addressed by the
minimum staffing requirements
proposed in section II. of this final rule.
Some of these commenters suggested
this alignment would aid in interested
parties’ ability to draw inferences from
the data regarding the impact of the
minimum staffing requirements
proposed in section II. of this final rule.
A few commenters suggested retaining
nurse practitioners and clinical nurse
specialists, in addition to registered
nurses, licensed practical nurses, and
certified nursing assistants. A
commenter suggested that restricting the
definition of direct care workers to
nursing staff would aid in data
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consistency among States because,
while every facility employs nursing
staff, there may be more variation
among States and facilities in the types
of the other workers; the commenter
provided the example that some States
recognize feeding and medication
assistants, and others do not.
Commenters who recommended
limiting the definition of direct care
worker to nursing staff suggested that a
second category, ‘‘ancillary staff,’’
should be defined to include the other
staff listed in § 442.43(a)(2) such as
physical therapists, occupational
therapists, speech-language
pathologists, and therapy aides; some of
these commenters also suggested adding
physicians, physician assistants, and
pharmacists to this category.
Other commenters advocated for
limiting the definition of direct care
workers to certified nursing assistants
and, where relevant, personal care aides
and home health aides. One of these
commenters also suggested retaining
feeding assistants in the definition.
These commenters suggested that these
roles are responsible for providing most
of the direct care to nursing facility and
ICF/IID residents, particularly in regard
to activities of daily living. A few of
these commenters suggested that these
roles would align more closely with the
definition of direct care worker in the
Ensuring Access to Medicaid Services
rule (as the definition was proposed at
88 FR 27984) and the way that the term
direct care worker has been used by
other Federal agencies such as the
Administration for Community Living.
Commenters also believed this would
allow for the transparent reporting of
compensation paid to workers who
typically receive lower pay.
Commenters expressed concerns that if
compensation to these workers were
reported together with the
compensation paid to typically higherpaid workers, this would obscure the
‘‘unique contributions and challenges of
these roles.’’ A few commenters
suggested other staff listed in
§ 442.43(a)(2) should be included in an
‘‘ancillary staff’’ category. A commenter
suggested that, rather than an ancillary
staff category, we create a ‘‘licensed
staff’’ category that includes all of the
staff that typically require licensure.
Response: We decline to create a new
category of ancillary or licensed staff
apart from the direct care worker
category. We note that there was not
consensus among commenters that the
definition of direct care workers should
be limited to staff with nursing duties,
staff without professional licenses, or
staff who typically receive lower pay.
We believe the category of direct care
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workers as proposed at § 442.43(a)(2) is
appropriately broad to capture a
spectrum of workers who provide direct
care to residents.
Limiting the definition of direct care
workers to nursing staff does not align
with our intention to examine
expenditures for all staff who provide
direct care to residents receiving
Medicaid institutional LTSS. We also
note that the reporting requirement we
proposed (and are finalizing in this final
rule) includes ICFs/IID, which do not
necessarily focus on nursing services to
the same extent as nursing facilities do.
We agree with the commenter who
noted that there might be variation in
the types of non-nursing staff in nursing
facilities, but we note that there is
variety in the roles of all staff across
facilities. Attempting to parse the direct
care workforce into additional
categories for reporting purposes not
only adds administrative burden, it also
could undermine our goal of creating
simple, nationally comparable baseline
data.
We continue to believe it is
appropriate to include licensed
professionals in the definition of direct
care worker. There is a shortage of
nurses and other clinicians delivering
LTSS, and we believe it is important to
support these members of the LTSS
workforce especially, as they also work
directly with residents. We disagree
with commenters who stated that
restricting the definition of direct care
workers to certified nursing assistants,
personal care aides, and feeding
assistants would align the definition
with the definition of direct care
workers in the Ensuring Access to
Medicaid Services final rule published
elsewhere in this Federal Register. We
note that the definition finalized at
§ 441.311(e), like the definition at
§ 442.43(a)(2), includes both licensed
clinicians and other unlicensed direct
care workers.
We also decline to add home health
aides to the definition of direct care
worker at § 442.43(a)(2). We agree with
commenters that home health aides are
part of the definition of direct care
workers finalized in the reporting
requirement at § 441.311(e) in the
Ensuring Access to Medicaid Service
final rule published elsewhere in this
Federal Register. However, while we
intend to align these definitions as
much as possible to provide a complete
picture of compensation for all direct
care workers providing Medicaid LTSS,
we also believe it is important to adapt
each definition to their respective
settings. We do not believe home health
aides typically provide services in
institutional facilities. In a situation
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where care might be provided by
someone described as a home health
aide, we believe this role would be
addressed by the category proposed at
§ 442.43(a)(2)(ix) (being finalized at
§ 442.43(a)(2)(xi)), which specifies
inclusion of any other individual who is
paid to provide clinical services,
behavioral supports, active treatment (as
defined at § 483.440), or address
activities of daily living (such as those
described in § 483.24(b)) for Medicaideligible individuals receiving Medicaid
services under this part.
Comment: A number of commenters
supported our definition of support staff
and agreed that the definition was broad
enough to include the workers
responsible for supporting residents’
health, safety, quality of care, and, in
ICFs/IID, active treatment. A few
commenters expressed specific support
for including compensation for support
staff in the reporting requirement.
Response: We thank commenters for
their support.
Comment: A few commenters
responded positively to our comment
solicitation regarding the inclusion of
security guards in the list of support
staff, agreeing that these workers should
be added to the list in § 442.43(a)(3).
One commenter noted that some ICFs/
IID that serve residents with aggressive
behavior may be required to have
security guards as part of their
licensure.
Commenters suggested that we
include the following workers in the
definition of support staff:
administrative staff (including billing
staff); receptionists; information
technology (IT) staff; central supply staff
who purchase and distribute food,
supplies, and materials for providers
who maintain multiple facilities; staff
who provide laundry or linen service;
and transportation drivers.
A commenter noted that every
employee who works in a facility
contributes, in some way, to the care of
those residents. The commenter stated
that all persons contributing to the care
of the residents, whether directly
employed by the facility or through
contract with an outside entity, should
be included as either direct care or
support staff.
Response: Based on feedback from
commenters, we will modify the
definition of support staff at
§ 442.43(a)(3) to include security guards.
We believe that security guards provide
important services that support the
safety of staff and beneficiaries in
facilities, but that these services may not
intuitively fall under any of the other
categories already included in the
definition of support staff. Thus, we
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40923
believe it is important to explicitly
include security guards as a category of
worker included in the definition
finalized at § 442.43(a)(3).
We decline to make other
modifications to the definition based on
comments. We believe laundry services
are already included in the definition of
support staff at § 442.43(a)(3)(i) as part
of housekeeping duties, and thus, we
decline to add that as a separate
category in the definition.
Transportation drivers are addressed in
the proposed definition (and the
definition we are finalizing) at
§ 442.43(a)(3)(v).
We believe the other specific
positions described by commenters are
administrative roles and would not be
included in our definition of support
staff at § 442.43(a)(3). We agree that all
staff, including those who provide
administrative support, are critical to
the functioning of a facility. We also
believe, as has been discussed at length
in the proposed rule at 88 FR 61381
through 61383, that direct care worker
understaffing in facilities is welldocumented and chronic and poses a
risk to the quality of care. As a result,
we have made addressing compensation
for institutional direct care workers and
support staff a particular focus of this
requirement.
Comment: A number of commenters,
particularly those representing ICFs/IID,
expressed concern that some staff may
have duties that encompass components
of both the direct care worker definition
in § 442.43(a)(2) and the support staff
definition in § 442.43(a)(3), such as
DSPs who also provide services such as
cooking, housekeeping, or maintaining
the physical environment of an ICF/IID.
Commenters expressed concern that this
overlap in duties would create
inconsistent reporting, confusion, or
additional administrative burden if
facilities had to report portions of the
same staff’s compensation in two
categories. A commenter suggested we
resolve this overlap by allowing the full
compensation for these DSPs to be
included in the direct care worker cost
category.
One commenter also noted that the
definitions of direct care worker and
support staff do not address universal
care workers who provide both nursing
services and support services.
Response: We believe that for
reporting purposes, compensation for
staff that act as direct care workers and
support staff should be reported
according to the staff’s primary job
duties. We do not expect the
calculations of the percent of payments
for nursing facility and ICF/IID services
that are spent on compensation for the
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direct care and support staff workforce
to allocate compensation across direct
care and support staff categories based
on the proportion of time an individual
worker performs specific tasks.
Comment: A few commenters
specifically noted support for the
inclusion of third-party contracted and
subcontracted staff in the definitions of
direct care workers and support staff at
§ 442.43(a)(2) and (3). A commenter
noted that if we were to exclude
contracted staff from the reporting
requirement, we would be missing
critical information on staff
compensation expenditures and create
an incentive for facilities to rely even
more heavily on contracted staff to
avoid having to report on payments to
these staff.
A few commenters suggested that we
expand the definitions of direct care
workers and support staff as they relate
to the inclusion of third-party
contracted staff. These commenters
noted that nursing facility ownership
structures have become extremely
complicated and that organizations can
engage with facilities in a variety of
ways including complicated relatedparty transactions. These commenters
recommended we expand the direct care
worker and support staff definitions to
include all individuals or entities
providing services under contract,
subcontract, or other related agreement,
in whole or in part, with an organization
or provider that provides goods or
services to the facility through contract,
subcontract, or other related agreement,
in-whole or in-part. This includes direct
care workers, ancillary services staff,
and support staff providing goods or
services to the facility under a contract,
subcontract, or other related agreement,
in-whole or in-part, and regardless of
whether the individual receives a W–2
from either the contracted organization
or the facility.
A few commenters observed that
many facilities use contract labor (in
which the contract price includes
wages, benefits, and administrative
costs) and all-inclusive contracts (in
which a facility pays a monthly rate for
labor, supplies, and other items). A
commenter suggested that we modify
the definition of compensation or
benefits to clarify that the definition
excludes any payment that is not
directly received by the worker or
excludes any payment that is retained
by a related party or contracted agency.
A commenter requested we issue
guidance requiring facilities to report
only the portion of contracted costs that
are actually related to compensation;
this commenter suggested that if it is not
possible for facilities to report only the
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portion of contracts related to
compensation, that we require States to
discount costs for payments to agencies
and contractors by an amount that
represents the average percentage of
these payments that is not related to
actual worker compensation, based on a
State examination of a sample of such
payments.
A number of commenters representing
ICFs/IID noted that ICFs/IID often
contract for many services. These
commenters stated that obtaining
compensation information from thirdparty organizations may be burdensome,
might require obtaining confidential or
proprietary information, discourage
third party entities from contracting
with ICFs/IID, create administrative
burden and complexity, and open ICFs/
IID to penalties if they are unable to
track down this information. Some of
these commenters specified concern
about the impact of the requirement on
ICFs/IID that contract with HCBS
providers to allow the ICF/IID residents
to attend community day programs.
Relatedly, a few commenters noted that
ICFs/IID may contract with other
community organizations to provide
ICF/IID residents access to, for example,
YMCA programs, bowling alleys, or
other recreational activities. These
commenters were concerned that these
community providers or organizations
would not accept the ICF/IID residents
if they were required to report on
compensation to their staff. A few
commenters expressed concern that
States would reduce ICF/IID services or
that ICFs/IID would stop offering
community engagement activities or feel
penalized for offering community
engagement if presented with increased
reporting burden.
To address the potential complexity
of reporting on third-party contracted
staff, a commenter suggested we allow
the full cost of contracts to be reported
separately, based on the general type of
service being delivered, which the
commenter believed aligns with most
States’ current ICF/IID cost reporting.
Similarly, another commenter noted
that in the commenter’s State, Medicaid
cost reports separate agency (contract)
spending from compensation paid to
employed workers and suggested that
we adopt the same approach.
Response: We decline to modify the
definitions of direct care worker or
support staff in response to these
comments. We agree that it is important
to report on the compensation paid to
contracted staff, not the value of the
entire contract to a third-party. As noted
by commenters, the value of the entire
contract may include administrative or
other costs that would fall outside the
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definition of compensation and inflate
the reported percentage of
compensation. We also agree with
commenters that excluding contracted
staff would not provide accurate insight
into allocation of Medicaid payments to
the workers providing direct care and
support to residents. We believe that the
language in the definitions of direct care
worker and support staff at
§ 442.43(a)(2) and (3) already indicates
that it is compensation to workers
employed as part of a contract, not the
value of an entire contract for services,
that should be included in the reporting.
We are concerned that some of the
alternate language proposed by
commenters might alter the definition in
ways beyond what we intended for the
definitions of direct care worker and
support staff. For instance, we are
uncertain what commenters meant in
their proposed alternative definition by
individuals who provide services ‘‘inwhole or in-part.’’ If this is a reference
to workers who provide services on less
than a full-time basis, then we believe
these individuals are already included
in our definitions of direct care worker
and support staff at § 442.43(a)(2) and
(3), as these definitions do not specify
whether a worker is employed on a partor full-time basis. We are concerned that
the language suggested by commenters
could be interpreted as including
compensation to individuals who, while
supporting an organization that
provides contracted services to
residents, do not themselves provide
services specifically for the residents.
We also note that the definitions of
direct care workers and support staff
that we proposed (and are finalizing,
with modifications, in this final rule)
are meant to capture employees and
contracted staff who provide services,
not goods, to facility residents. We
would not, for instance, expect the
compensation of staff working for a
wholesale grocer that supplies food to a
facility to be included in the reported
compensation.
We acknowledge that some facilities
may rely on a number of contracts to
provide services for residents (including
contracts with HCBS providers or other
entities in the community). We do not
believe the compensation of all workers
employed by a contractor or
subcontractor will be relevant to the
reporting requirement. Given the variety
of contracting models we will provide
subregulatory guidance to States on how
to approach reporting on compensation
to contracted and subcontracted staff.
Comment: One commenter noted that
HCBS providers providing contracted
services for ICF/IID residents may face
additional, duplicative, or conflicting
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reporting requirements, due to
finalization of compensation-related
reporting requirements in the Ensuring
Access to Medicaid Services rule.
Response: As finalized at § 441.311(e)
in the Ensuring Access to Medicaid
Services rule published elsewhere in
this Federal Register, HCBS providers
that provide homemaker, home health
aide, personal care, or habilitation
services will be required to report on the
percent of Medicaid payments going to
direct care worker compensation. We
will provide subregulatory guidance on
how States should approach reporting
by HCBS providers who fall within the
reporting requirement at § 441.311(e)
and who also provide contracted
services to nursing facility or ICF/IID
residents to minimize reporting burden
on these providers.
After consideration of the comments
received, we are finalizing the definition
of direct care worker at § 442.43(a)(2)
with a modification to add DSPs and to
include nurses or other staff who
provide clinical supervision. We are
finalizing the definition of support staff
at § 442.43(a)(3) with a modification to
add security guards.
D. Reporting Requirement
Based on our authority at sections
1902(a)(6) and 1902(a)(30)(A) of the Act
with respect to FFS, and sections
1902(a)(4) and 1932(c) of the Act with
respect to managed care plans (that is,
MCOs and PIHPs), we proposed new
reporting requirements at § 442.43(b) to
require States to report annually, by
delivery system (if applicable) and by
facility, on the percent of Medicaid
payments for nursing facility and ICF/
IID services that is spent on
compensation for direct care workers
and on compensation for support staff,
at the time and in the form and manner
specified by CMS. As noted in our
responses previously, and as discussed
in the proposed rule at 88 FR 61386, we
believe that this information will help
identify national trends and also help
States identify facilities that appear to
be outliers in terms of the amount of
Medicaid payment going to direct care
worker and support staff compensation.
We believe that contextualizing direct
care worker and support staff
compensation information in this
manner will help States understand
whether current payment rates for
nursing facility and ICF/IID services are
consistent with economy, efficiency,
and quality, and sufficient to ensure
meaningful beneficiary access.
We proposed that the reporting to
CMS would be for all Medicaid
payments made to nursing facility and
ICF/IID providers receiving payment
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under FFS or managed care delivery
systems. As discussed in 88 FR 61387,
for FFS payments, this would include
base payments and supplemental
payments for nursing facility and ICF/
IID services. For FFS base and
supplemental payments, we are relying
on the definition of supplemental
payments provided in section
1903(bb)(2) of the Act, which defines
supplemental payments as Medicaid
payments to a provider that are in
addition to any base payment made to
providers under the State plan or under
demonstration authority. As discussed
in guidance released in 2021, we
interpret base payment (as used in the
definition of supplemental payment in
section 1903(bb)(2)(A) of the Act) to
refer to a standard payment to the
provider on a per-claim basis for
services rendered to a Medicaid
beneficiary in an FFS environment. The
base payment can include: (1) any
payment adjustments; (2) any add-ons;
and/or (3) any other additional
payments received by the provider that
can be attributed to services identifiable
as having been provided to an
individual beneficiary, including those
that are made to account for a higher
level of care, complexity, or intensity of
services provided to an individual
beneficiary.90 We solicited comment on
whether, for FFS payments, we should
instead require reporting on only the
percent of base payments spent on such
compensation, or separate reporting on
the percent of base payments and on the
percent of aggregated payments (base
plus supplemental payments) spent on
such compensation.
We also proposed at § 442.43(b) that,
for States that contract with MCOs and/
or PIHPs to cover services delivered by
nursing facilities and/or ICFs/IID, States
report on the percent of payments made
by the MCO or PIHP to nursing facilities
and ICFs/IID that is spent for
compensation to direct care workers and
support staff. For these managed care
plans, payments would include the
managed care plan’s contractually
negotiated rate, State directed payments
defined in § 438.6(a), pass-through
payments defined in § 438.6(a) for
nursing facilities, and any other
payments from the MCO or PIHP to the
nursing facility or ICF/IID.
We also proposed to require that, if
States deliver the relevant services
through both FFS and managed care, the
States report separately for each
delivery system.
We proposed that the reporting be
performed annually. We solicited
comment on this timeframe. We
requested comment on whether annual
reporting is reasonable, or if we should
reduce the frequency of reporting to
every other year or every 3 years.
We received comments on our
proposal. The following is a summary of
these comments and our responses.
Comment: A number of commenters
recommended that instead of, or in
addition to, our proposed reporting
requirements we implement the
Medicaid transparency
recommendations of the March 2023
Medicaid and CHIP Payment and
Access Commission (MACPAC).91 The
MACPAC recommendations call for
State Medicaid programs to make
nursing facility payment and cost data
publicly available for each nursing
facility in a standard format that
includes: (1) FFS base Medicaid
payments, FFS supplemental payments,
managed care State directed payments,
and beneficiary contributions to their
share of costs; (2) the amount of
provider contributions to the nonFederal share of Medicaid payments to
calculate net payments to providers; (3)
expenses for wages and benefits
separately for nursing, ancillary, and
support services as well as
administrative staff and other
employees; (4) expenses for direct care
including staffing costs for nursing,
ancillary, and support services; (5)
expenses for administration, property,
and profits; and (6) detailed expenses
for related-party transactions, real estate
ownership, and disallowed costs. These
commenters believed that unless
Medicaid programs are required to
provide more comprehensive data on
rates and payments as well as expenses,
we will not be able to draw any useful
conclusions from the proposed
transparency requirement.
Response: We defer to States as to
whether they wish to make this
information available to the public.
While we agree that this level of
granular detail would generate a great
deal of potentially useful information,
we strongly disagree with commenters
that reporting on higher-level aggregated
data would not yield useful information.
We note that the reporting requirement
at § 442.43 will provide data on the
90 Centers for Medicare & Medicaid Services,
State Medicaid Directors Letter # 21–006, New
Supplemental Payment Reporting and Medicaid
Disproportionate Share Hospital Requirements
under the Consolidated Appropriations Act, 2021,
December 10, 2021. https://www.medicaid.gov/
federal-policy-guidance/downloads/smd21006.pdf.
91 Medicaid and CHIP Advisory Committee,
March 2023 Report to Congress on Medicaid and
CHIP. See specifically ‘‘Chapter 2: Principles for
Assessing Medicaid Nursing Facility Payment
Policy.’’ Available at: https://www.macpac.gov/
publication/principles-for-assessing-medicaidnursing-facility-payment-policies/.
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percent of Medicaid payments
(including FFS base payments, FFS
supplemental payments, managed care
State directed payments, and
beneficiary contributions) that is being
spent on compensation for direct care
and support staff as well as other
payments that may not all be captured
in the MACPAC recommendations, such
as other payments in managed care
delivery systems, including
contractually negotiated rates, passthrough payments, and any other
payments from the MCO or PIHP in
managed care delivery systems. As
noted in a prior response, we decline to
subdivide direct care workers into
nursing and ancillary staff categories.
We believe that this reporting
requirement will result in nationally
comparable baseline data that will allow
for inferences regarding investment in
the direct care and support staff
workforce. While we will take the other
recommendations under consideration,
at this time we do not intend to increase
administrative burden on States and
providers by requiring Federal reporting
on additional categories that fall outside
of our focus on the direct care and
support staff workforce.
We also point commenters to the
Disclosures of Ownership and
Additional Disclosable Parties
Information for Skilled Nursing
Facilities and Nursing Facilities final
rule (88 FR 80141) published on
November 17, 2023, which implements
portions of section 6101 of the Patient
Protection and Affordable Care Act
requiring the disclosure of certain
ownership, managerial, and other
information regarding Medicare skilled
nursing facilities (SNFs) and Medicaid
nursing facilities. Some of the
commenters’ additional concerns
regarding facility ownership structures
may be addressed by the requirements
in that rule.
Comment: A few commenters noted
support for requiring reporting of both
FFS base and supplemental payments,
pointing out that supplemental
payments contribute to total revenue in
the same way that base rates do and
should not be treated differently or
excluded.
One commenter noted that in the
commenter’s State, facilities do not
receive FFS supplemental payments but
rather receive varying FFS base
payments depending on the acuity of
the residents. This commenter stated
that requiring reporting on total
payments would result in better
comparisons across States. A few
commenters stated that FFS payment
base rates do not fluctuate drastically
year-to-year without changes to the
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State plan, and thus believed that
including both FFS base and
supplemental payments would not be
burdensome and would provide a
comprehensive picture of nursing
facilities’ expenditures on
compensation. A few commenters also
noted support for requiring reporting on
all payments from an MCO or PIHP,
including State directed payments made
by these managed care plans.
One commenter, on the other hand,
supported reporting on FFS base and
supplemental payments separately. The
commenter stated that separate
reporting would illustrate the separate
roles of the FFS base payment and
supplemental payments, which in turn
would be important to understanding
how Medicaid payments support
nursing facility staffing and ensure
supplemental payments were also being
used to support worker compensation.
Response: We are finalizing the
substantive language at § 442.43(b)
specifically requiring reporting on
Medicaid FFS base and supplemental
payments as proposed. (We note that we
are finalizing § 442.43(b) with some
non-substantive technical modifications
to improve the overall clarity of the
requirement.) We agree with
commenters that requiring reporting on
both Medicaid FFS base and
supplemental payments (added
together) strikes the right balance of
providing a complete picture of
Medicaid FFS payments while
minimizing administrative burden to
the greatest extent possible.
Upon further consideration, we are
finalizing § 442.43(b) with a
modification to remove the specification
that reporting is ‘‘by delivery system.’’
We continue to expect that services
delivered under a managed care
delivery system will be part of the
reporting requirement. We do not,
however, intend to require that States
report data to us separately by delivery
system. We note that commenters did
not express specific support for this
separate reporting, and we are
concerned that this separate reporting
may increase administrative burden in
States that provide services through
both FFS and managed care delivery
systems. We also note that the
compensation reporting requirement
(reporting on the percent of Medicaid
payments made to direct care workers
providing Medicaid HCBS) finalized at
§ 441.311(e) in the Ensuring Access to
Medicaid Services final rule published
elsewhere in this Federal Register does
not require separate reporting by
delivery system. We intend to align
these reporting requirements to the
greatest extent possible.
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Comment: A commenter requested
that CMS clarify what payments are
required to be reported in accordance
with § 442.43(b) for providers that are
network providers for an MCO or PIHP.
Response: We point readers to the
language being finalized at § 442.43(b),
which states that the Medicaid
payments that must be included in the
State reporting include the contractually
negotiated rate, State directed payments,
pass-through payments, and any other
payments from the MCO or PIHP for
nursing facility and ICF/IID providers.
Comment: Several commenters
supported requiring reporting at least
annually for both FFS and managed care
delivery systems, which commenters
believed would aid in tracking trends in
worker compensation across facilities
and States. One commenter noted that
an annual frequency appropriately
balances the need for actionable
information with administrative burden.
One commenter noted that timely data
on Medicaid is critical as rates can be
too low and not updated frequently,
which can have a negative impact on
providers and on beneficiaries’ access to
care. One commenter noted that
frequent public reporting can be a
critical element to promoting policy
change and improving health care
quality.
A few commenters, however, while
stating that they found the annual
reporting frequency to be reasonable,
noted that States have many reporting
burdens and asked that we remain
receptive to alternative frequencies
proposed by States. One of these
commenters noted that some States may
need more time than others to come into
compliance with the requirement and
suggested that we allow for some
flexibility to accommodate different
States’ circumstances or allow States to
determine their own timeframe.
A few commenters, citing concerns
about the burden associated with
collecting and analyzing reimbursement
streams and worker compensation data,
as well as competing reporting priorities
and limited staff resources, suggested
we require reporting every 3 years. One
of these commenters noted that some of
the wage and benefit information that
would be required is not readily
available to some Medicaid agencies,
not all cost reports have this
information, and providers do not
typically report this type of information
to their State Medicaid agencies.
Response: We are finalizing the
annual reporting frequency as proposed.
We agree with commenters that
receiving timely reporting data is
critical, and we are concerned that if too
much time elapses between each
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reporting period, the reports, when
released, will become quickly out of
date. Additionally, as discussed further
in this section, we are finalizing at
§ 442.43(f) an applicability date that will
give States 4 years to comply with this
reporting requirement. Once States that
do not currently collect these data
update their systems appropriately, we
believe the reporting will become
routine and the initial administrative
burden will lessen. We will provide
technical assistance to States as needed
as they develop their reporting capacity.
After consideration of the comments
received, we are finalizing a
modification to § 442.43(b) to strike ‘‘by
delivery system’’ from the reporting
requirement.
We are also finalizing § 442.43(b) with
minor modifications to clarify that the
Medicaid payments used in the
calculation required at § 442.43(b) do
not include excluded costs (which are
being finalized at § 442.43(a)(4), as
discussed in section III.B. of this final
rule.) Additionally, we are finalizing the
regulatory text at § 442.43(b) with
technical modifications to aid with
clarity and correct minor grammatical
errors.
E. Exclusion of Certain Payments
We proposed at § 442.43(b)(1) to
require reporting for payments,
including FFS base and FFS
supplemental payments, and payments
from managed care plans, to nursing
facilities and ICFs/IID for Medicaidcovered services, with the exception of
services offered in swing bed hospitals
(as described in § 440.40(a)(1)(ii)(B)).
We proposed to exclude swing bed
hospitals, as we do not want to pose a
burden on rural hospitals that provide
LTSS to a comparatively small number
of beneficiaries. We solicited comment
on this proposal.
For reasons described in the proposed
rule at 88 FR 61387, at § 442.43(b)(2),
we proposed that States exclude from
the reporting payments for which
Medicaid is not the primary payer,
meaning that States would exclude
payments for services for residents who
are dually eligible for Medicare and
Medicaid and whose skilled nursing
care services are paid for by Medicare.
We solicited feedback from the public
on whether including cost-sharing
payments for services that were
primarily paid for by Medicare would
provide a more accurate picture of the
relationship between Medicaid
payments and worker compensation.
We also requested comment on whether
excluding cost-sharing payments would
increase or decrease burden on States
and providers.
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For reasons discussed at 88 FR 61387,
we did not propose to exclude
beneficiary contributions to their care
when Medicaid is the primary payer of
the services.
We considered whether to allow
States, at their option, to exclude, from
their reporting, payments to providers
that have low Medicaid revenues or
serve a small number of Medicaid
beneficiaries, based on Medicaid
revenues for the service, the number of
Medicaid beneficiaries receiving the
service, or other Medicaid utilization
data including but not limited to
Medicaid bed days. We considered this
option as a way to reduce State,
managed care plan, and provider data
collection and reporting burden based
on the experience of States that have
implemented similar reporting
requirements. However, we were
concerned that such an option could
discourage providers from serving
Medicaid beneficiaries or increasing the
number of Medicaid beneficiaries
served. We requested comment on
whether we should allow States the
option to exclude, from their reporting
to us, payments to providers that have
low Medicaid revenues or serve a small
number of Medicaid beneficiaries, based
on Medicaid revenues for the service,
the number of Medicaid beneficiaries
receiving the service, or other Medicaid
utilization data including but not
limited to Medicaid bed days. We also
requested comment on whether we
should establish a specific limit on such
an exclusion and, if so, the specific limit
we should establish, such as to limit the
exclusion to providers in the lowest 5th,
10th, 15th, or 20th percentile of
providers in terms of Medicaid revenues
for the service, number of Medicaid
beneficiaries served, or other Medicaid
utilization data (including but not
limited to Medicaid bed days).
We received comments on our
proposal. The following is a summary of
these comments and our responses.
Comment: A few commenters
supported our decision to exclude
payments to swing beds from the
reporting in the proposed rule. These
commenters noted that swing bed
hospitals utilize different accounting
systems for their expenditures and thus
should not be included in nursing
facility reporting. One commenter
agreed that swing bed hospitals should
be excluded to avoid placing a burden
on rural facilities that serve a relatively
low number of nursing facility
residents.
Response: We thank commenters for
their support. We are finalizing the
exclusion of payments to swing bed
hospitals at § 442.43(b)(1) as proposed.
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40927
Comment: A few commenters agreed
with excluding payments for services in
which Medicaid is not the primary
payor. One commenter specifically
agreed that this exclusion would reduce
burden on States and providers and that
payments from other payors would not
provide meaningful insight into the
allocation of Medicaid payments for
compensation of workers. However, a
number of commenters recommended
we require that reporting be for the
percent of all revenue spent on
compensation (and not limited just to
the percent of Medicaid payments).
Commenters believed this would further
aid in transparency and oversight of
how facilities allocate their revenue. A
few commenters also stated that
requiring only reporting on payments
for which Medicaid is the primary payer
actually increases burden and
recommended that reporting be on the
percentage of all revenues that are spent
on compensation. Commenters noted
that nursing facilities receive revenue
from many sources apart from Medicaid
payments and pay direct care workers
and support staff compensation from a
pool comprised of all revenue sources.
A number of commenters
recommended we expand this
requirement to include Medicare as well
as Medicaid payments. A few of these
commenters disagreed with our
statement that including Medicare
payments was out of scope. These
commenters stated that not only is
including Medicare payments within
our authority, not doing so ignores our
legal obligations under the Nursing
Home Reform Act (specifically, 42
U.S.C. 1396r(f)(1)) to protect residents
and make sure that public funding is
effectively and efficiently used, as well
as our obligations under section 6104 of
the Affordable Care Act (requiring that
skilled nursing facilities receiving
Medicare payments disclose wages paid
to direct care staff on their cost reports).
Response: We decline to modify the
requirements to require reporting for all
revenue or for Medicare revenue, as this
would be out of scope for the proposal.
We believe that States and facilities are
aware of the amount of Medicaid
payments received by each facility. We
understand that all revenue received by
a facility ultimately gets pooled together
for the purposes of paying worker
compensation and that facilities often
serve a mix of residents with different
payers and different needs. As
discussed further in this section, we
will provide a methodology that will
allow States to make a reasonable
calculation of what percent of a
facility’s direct care and support staff
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workforce was paid from Medicaid
revenues.
As discussed in the proposed rule at
88 FR 61383, we proposed these
reporting requirements in part using our
authority under section 1902(a)(30)(A)
of the Act, which requires State
Medicaid programs to ensure that
payments to providers are consistent
with efficiency, economy, and quality of
care and are sufficient to enlist enough
providers so that care and services are
available to beneficiaries at least to the
extent as to the general population in
the same geographic area. We believe
section 1902(a)(30)(A) of the Act speaks
specifically to Medicaid payments, not
to all payments received by providers.
We will take under advisement
commenters’ recommendations
regarding reporting on all revenue but
cannot pursue such a requirement in
this rule.
We also reiterate that our intention is
to align the reporting requirement at
§ 442.43 with similar reporting
requirements finalized in the Ensuring
Access to Medicaid Services final rule
published elsewhere in this Federal
Register, which focuses on the percent
of Medicaid payments for certain HCBS
going to compensation for the direct
care workforce. The purpose of these
aligned requirements is to provide a
consistent picture of the percent of
Medicaid payments going to
compensation for the direct care
workforce for Medicaid-covered LTSS
across settings. Not only would adding
reporting on Medicare payments be out
of scope for this reporting requirement,
we believe that doing so would obscure
data on the allocation of Medicaid
payments. We thank commenters for
their feedback and will consider a
reporting requirement for Medicare
payments for future rulemaking.
Comment: A few commenters agreed
that beneficiary contributions, such as
co-pays (to the extent they exist) should
also be included in the revenue side of
the calculation. A few commenters
noted that because beneficiary
contributions can fluctuate, they can
have an impact on the resources
available for compensation to staff and
thus should be included in the
reporting.
One commenter asked for clarification
on which beneficiary contributions
should be included. The commenter
noted that in the proposed rule we
mentioned deductibles and coinsurance
but did not mention resident
contributions to the cost of their care as
a result of Medicaid rules for posteligibility treatment of income (PETI).
The commenter expressed concern that
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we had not listed all types of beneficiary
contributions in the regulatory text.
Response: We thank commenters for
their support. We clarify that
beneficiary contributions, including
contributions to the cost of their care as
a result of Medicaid rules for PETI, are
part of Medicaid total payments for the
purposes of this reporting requirement.
We decline to specify beneficiary
contributions in the regulatory text
because we believe these are already
understood to be part of total Medicaid
payments. As noted in the proposed
rule at 88 FR 61387, § 447.15 defines
payment-in-full as ‘‘the amounts paid by
the agency plus any deductible,
coinsurance or copayment required by
the [State] plan to be paid by the
individual.’’ For managed care delivery
systems, although the term ‘‘paymentin-full’’ as defined at § 447.15 is not
applicable, for consistency between FFS
and managed care delivery systems, any
deductible, coinsurance, or copayment
required to be paid by the individual
would similarly be included in the total
amount used to determine the percent of
Medicaid payments for nursing facility
and ICF/IID services under managed
care delivery systems that is spent on
compensation for direct care workers
and support staff.
Comment: Most commenters who
responded to our comment solicitation
on small provider exemptions did not
support exempting small providers from
the reporting requirement because a
complete picture of Medicaid spending
on compensation in all nursing facilities
and ICFs/IID is critically needed. A few
commenters agreed with the reasons we
cited in the proposed rule, that
excluding certain providers would
create the potential for disincentivizing
providers to accept Medicaid patients. A
commenter noted that ICFs/IID in
particular tend to be small, so excluding
small providers could mean a
significant number (if not all) of some
States’ ICF/IID providers might be
exempted.
One commenter did support
excluding certain providers, noting that
providers with a low number of nursing
beds or extremely high or extremely low
Medicaid utilization will typically not
have operating costs that reflect the
average for the industry and as such
may change the State reported averages.
The commenter proposed that providers
should be excluded from reporting
information required by this rule if they
have any of the following characteristics
during the reporting period: (1)
Medicaid utilization based on census of
30 percent or less; (2) Medicaid
utilization based on census of 80
percent or more; or (3) 40 or fewer
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Medicaid-certified beds. One
commenter recommended excluding
payments for out-of-State single-case
agreements, due to the difficulties
collecting data from out-of-State
facilities.
Response: We thank commenters for
their feedback regarding concerns
related to offering exemptions from the
reporting requirement. We agree that
offering exemptions would create
disincentives to serve Medicaid
beneficiaries and would not provide a
comprehensive picture of compensation
for the direct care and support staff
workforce. We also note that we are
especially interested in the expenditures
of facilities serving a high percentage of
Medicaid beneficiaries and, thus, would
not wish to exclude them from this
reporting. We will not modify this
reporting requirement to add
exemptions for providers. We will
provide technical assistance as needed
to address payments for Medicaid
beneficiaries in out-of-State facilities.
Comment: One commenter expressed
concern about the impact of dually
eligible individuals on cost calculations,
as Medicaid does not bear the cost of
therapy provision or prescription drugs
for dually eligible nursing facility
residents.
Response: As discussed in the
proposed rule at 88 FR 61386, States
would exclude Medicaid payments to
cover only cost-sharing payments on
behalf of residents who are dually
eligible for Medicare and Medicaid and
whose skilled nursing care services are
paid for by Medicare. We will provide
technical assistance on how to calculate
costs for dually eligible residents whose
nursing facility care is being covered by
Medicaid, but some aspects of their care
are paid for by Medicare.
After consideration of the comments
received, we are finalizing the
requirements at § 442.43(b)(1) and (2) as
proposed.
We are also finalizing at new
§ 442.43(b)(3) an exemption of data from
Indian Health Service (IHS) and Tribal
health programs subject to 25 U.S.C.
1641. During our finalization of the
Ensuring Access to Medicaid Services
final rule published elsewhere in this
Federal Register, it came to our
attention that requirements potentially
affecting IHS or Tribal provider
expenditures would conflict with 25
U.S.C. 1641, governing how IHS and
Tribal health programs may use
Medicare and Medicaid funds, and
other applicable laws providing for
Tribal self-governance and selfdetermination. Although we are not
finalizing a requirement in this final
rule to require that providers spend a
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minimum percentage of their Medicaid
payments for nursing facility or ICF/IID
services on direct care worker and
support staff compensation, we have left
open the possibility that the data
collected under § 442.43 could help
inform a minimum performance
proposal in future rulemaking. Given
the conflict between such a minimum
performance requirement and the
statutory requirements at 25 U.S.C.
1641, we will be unable to use data from
IHS and Tribal health programs to
inform future policy making related to
direct care worker and support staff
compensation. We believe that requiring
States to report on data from IHS and
Tribal programs would create
unnecessary burden and (given their
current allocation requirements) might
skew the other data States would collect
and report to CMS. Further, we note that
finalizing an exemption for IHS and
Tribal programs at § 442.43(b)(3) aligns
with an exemption in the compensation
reporting requirement finalized at
§ 442.311(e)(2) in the Ensuring Access to
Medicaid Services final rule published
elsewhere in this Federal Register.
F. Report Contents and Methodology
At § 442.43(c)(1), we proposed that
the reporting must provide information
necessary to identify, at the facility
level, the percent of Medicaid payments
spent on compensation to: direct care
workers at each nursing facility, support
staff at each nursing facility, direct care
workers at each ICF/IID, and support
staff at each ICF/IID. We anticipate that
States and providers would be able to
obtain the information needed to
calculate the percent of Medicaid
payments made to direct care workers
and support staff using data used in rate
setting, internal wage information, cost
reports, and resident census numbers
(which would indicate the number of
days residents had Medicaid-covered
stays during the year). However, we
solicited comment on our proposal that
information be reported at the facility
level, particularly on any concerns
about potential burden on providers and
States.
We proposed to include in the
reporting requirement the percentages of
Medicaid payments to each nursing
facility or ICF/IID that are going towards
compensation to direct care workers and
support staff at those facilities.
However, we stated in the proposed rule
at 88 FR 61387 that we would consider
adding to the proposed reporting
requirements additional elements for
States to report on median hourly
compensation for direct care workers
and median hourly compensation for
support staff, in addition to the percent
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of Medicaid payments going to overall
compensation for these workers. We
requested that commenters also provide
feedback on whether the reporting
should be on salary/wages or on total
compensation (salary/wages and other
remuneration, including employer
expenditures for benefits and payroll
taxes) and whether the information
should be calculated for all direct care
workers and for all support staff or
further broken down by the staff
categories specified in our proposal at
§ 442.43(a)(2) and (3).
At § 442.43(c)(2), we proposed that
States must report the information
required at § 442.43(c)(1) (the percent of
Medicaid payment going to
compensation for direct care workers
and support staff and, if added to the
provision, median hourly wages)
according to a methodology that we
provide. For reasons discussed in the
proposed rule at 88 FR 61387 through
61388, we did not propose to codify a
specific reporting methodology. In the
proposed rule at 88 FR 61387, we stated
that if this proposal is finalized, we
would specify a reporting methodology
as part of the reporting instrument,
which would be submitted separately
for formal public comment under the
processes set forth by the Paperwork
Reduction Act. We solicited initial
suggestions for an appropriate
methodology for identifying the
percentage of Medicaid payment that
has gone to direct care worker and
support staff compensation. We also
solicited initial suggestions about
whether separate methodologies would
be appropriate for FFS base payments
and supplemental payments and if so,
suggestions for each. Commenters who
supported adding a requirement to
report median hourly wages were also
asked to provide suggestions for a
methodology for those calculations.
To support our goal of transparency,
we considered adding a provision
requiring that States make publicly
available information about the
underlying FFS payment rates
themselves for nursing facility and ICF/
IID services. For the reasons discussed
in 88 FR 61388, we considered adding
to the proposed reporting provisions a
requirement that, as applicable, States
report a single average Statewide FFS
per diem rate (one reported rate for
nursing facility services and one
reported rate for ICF/IID services). We
also requested comment on whether the
reported average should be the average
of only the per diem FFS base payment
rates or the average of the per diem FFS
base payment rates plus FFS
supplemental payments.
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40929
Finally, as discussed in 88 FR 61388,
in consideration of potential future
rulemaking, we requested comment on
whether we should require that a
minimum percentage of the payments
for Medicaid-covered nursing facility
services and ICF/IID services be spent
on compensation for direct care workers
and support staff. We also requested
comment on whether such a
requirement would be necessary to
ensure that payment rates and
methodologies are economic and
efficient and consistent with meaningful
beneficiary access to safe, high-quality
care, or otherwise necessary for the
proper and efficient operation of the
State plan. Additionally, we requested
suggestions on the specific minimum
percentage of payments for Medicaidcovered nursing facility services and
ICF/IID services that should be required
to be spent on compensation to direct
care workers and support staff. If a
minimum percentage was
recommended, we requested that
commenters provide separate
recommendations for nursing facility
services and ICF/IID services and the
rationale for each such minimum
percentage that is recommended. We
requested that commenters provide data
or evidence to support such
recommendations, which we will
review as part of our consideration of
policy and rulemaking options.
We received comments on our
proposal. The following is a summary of
these comments and our responses.
Comment: A few commenters
expressed support for the requirement
that States collect data at the facility
level. A commenter noted specific
support for including both privatelyand publicly owned facilities.
A few commenters noted that facilitylevel reporting may be burdensome. One
of these commenters asked for
clarification as to whether the reporting
will be by provider or by facility; the
commenter noted that some providers
operate multiple individual facilities
and that requiring reporting at the
facility level rather than the provider
level will increase burden.
Response: As stated in our proposed
requirement at § 442.43(c), the reporting
gathered by the State should be at the
facility level (but reported to CMS, for
each nursing facility, as a single
aggregated percentage for direct care
worker compensation and, separately, a
single aggregated percentage for support
staff compensation and, for each ICF/
IID, a single aggregated percentage for
direct care worker compensation and,
separately, a single aggregated
percentage support staff compensation).
We will provide technical assistance to
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States on how to collect data from
providers that operate multiple facilities
to minimize administrative burden.
Comment: Many commenters
supported disaggregating the reporting
requirements by job duty or title, rather
than reporting a percentage for direct
care workers and a percentage for
support staff. Several commenters also
supported requiring reporting on
median hourly wages (again,
disaggregated by job duty). These
commenters noted that wages for
different types of direct care workers
and support staff are wide ranging, and
commenters were concerned that
posting broad categorical percentages or
median hourly wages for a range of job
classifications would not provide
transparency regarding how the facility
is staffed and how each type of worker
is compensated.
Other commenters did not support
reporting on median hourly wages. A
commenter, representing a number of
State Medicaid agencies, stated that
while some Medicaid agencies agreed
that this data would help evaluate the
impact of rate increases on staff wages,
others were strongly opposed to
additional reporting due to the
increased administrative burden on
States and providers. A commenter
noted that the cost reports in the
commenter’s State do not currently
include median hourly wages and that
having to obtain that information from
facilities would significantly increase
burden.
A few commenters believed that if
median hourly wage was reported, it
should be reported for total
compensation. One of these commenters
observed that facilities might have to
make changes to their facility’s human
resources or accounting software to
accommodate further disaggregation of
wage reporting. The commenter also
noted that the wide variety of salary or
wage types and pay systems would
make data disaggregated beyond total
compensation difficult to compare
among States and across providers.
A few commenters suggested that this
reporting be disaggregated by the
subcategories of compensation listed in
the definition of compensation at
§ 442.43(a)(1). A few commenters
suggested that the subcategories should
be further disaggregated, such as
requiring reporting separately on
overtime payments, the cost of paid
time off, and the cost of health benefits.
A few commenters suggested we
require disaggregation beyond
compensation subcategory or job duty.
A commenter suggested we require
disaggregating median wage by partand full-time status, as well as by
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contracted and employee status, which
the commenter believed would allow
policymakers to better understand the
relationships between Medicaid
payment, provider employment
practices, and quality of care. A
commenter, making a similar suggestion
to require separate reporting of
contracted staff, also suggested we
require that facilities report whether
they have an ownership interest in the
third-party entity providing the
contracted services. A few commenters
suggested we require separate reporting
on wages paid to new staff, to ensure
facilities were appropriately investing in
increasing staffing levels. A commenter
suggested reporting on whether a
facility offers health and retirement
benefits and the percent of workers
enrolling in those benefits. A few
commenters also recommended we
encourage States to collect data that
would demonstrate racial, gender, and
career advancement disparities.
A few commenters suggested that
reporting be disaggregated by rate
component. A commenter explained
that due to the large variations between
the Medicaid reimbursement systems
used in the States and territories,
reporting by rate component would
allow for a variety of percentage of
payment calculations by individual rate
component and in total.
Response: We are finalizing the
Federal reporting requirement as
proposed (to require aggregated
reporting of direct care worker
compensation and support staff
compensation) and without requiring
reporting on median hourly wages.
In previous comment summaries and
responses, we discussed concerns about
variations in job titles and duties and
are concerned that requiring payment
broken down by job title may make
national comparisons difficult, and
significantly increase the reporting
burden. For similar reasons, we decline
at this time to require reporting on
median hourly wage. As noted by
commenters, there are variations among
State and local wage laws and cost of
living that would make meaningful
comparisons of median hourly wages
difficult at a national level. We believe
it is important to first establish
competency with collecting and
reporting broad baseline data before
requiring more granular reporting,
although we recognize there could be
value to collecting more granular data,
including on median wages, in the
future.
Additionally, upon consideration of
the comments, we have identified no
compelling reason to implement a
Federal requirement for disaggregating
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the data by compensation category. We
believe that employee benefits, in
addition to wages, are also integral to
the compensation of direct care workers
and support staff. The third component
of compensation—employers’ share of
payroll taxes—is a fixed percentage of
the employee’s wages set by law.
We thank commenters for their
thoughtful feedback and suggestions for
additional reporting components or
metrics. We note that States may, at
their discretion, require additional
disaggregated data that they feel would
be helpful in tracking local trends in
workforce compensation and providing
oversight and transparency.
Comment: Many commenters
recommended that nursing homes
should be required to detail other
expenses, including any payments to
related parties. These commenters
believed that this would support greater
financial transparency. One commenter
recommended that both Medicare and
Medicaid cost reports be made publicly
available to disclose the total amount of
spending on nursing, ancillary, and
support services compared with
spending on administration, property,
profits, related party transactions, and
disallowances.
One commenter recommended that
additional data be collected on other
outcome measures, including staffing
levels for direct care workers and
workers who provide indirect care (such
as housekeeping or food services); the
number of short- and long-stay
residents; payer distribution of
residents; quality measures constructed
from the Minimum Data Set; safety
measures constructed from health
inspection data collected from nursing
homes during on-site inspection
surveys; medical outcomes from
Medicare data, including hospital
admissions, emergency department
visits, mortality, hospital readmissions,
and successful community discharge
(short stay); and results from surveys of
residents, family, and staff.
Response: We thank commenters for
their suggestions but note that
recommendations regarding reporting
on expenditures other than
compensation are out of scope for this
rule, as are requests that we create and
finalize requirements regarding cost
reports. As stated in prior responses, the
purpose of this requirement is not the
granular tracking of all facility
expenditures. As discussed at length in
the proposed rule at 88 FR 61831
through 61833, understaffing in
facilities is well-documented and
chronic and poses a risk to the quality
of care, and thus we have made
addressing compensation for
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institutional direct care workers and
support staff a particular focus of this
requirement. We recognize the role of
related-party and other transactions in
affecting the overall costs and profits of
nursing facilities, and in turn the
amount of funding available for direct
care and administrative staffing; we will
examine this issue and its impacts on
quality in the future.
We also note that Nursing Home
Compare contains a great deal of
information regarding quality measures
for nursing facilities.
Comment: Although they did not
necessarily provide recommendations
for a methodology, some commenters
expressed concerns about how the
required information will be calculated.
These concerns include:
• For facilities that accept payments
from multiple payers, identifying the
amount of compensation for services
provided to residents with stays covered
by Medicaid;
• Accounting for variations in
beneficiary acuity, which can impact
both the amount of Medicaid payments
and the facility resources allocated to
the beneficiaries;
• Accounting for third party contracts
in which (1) the contract price includes
wages, benefits, and administrative
costs, or (2) all-inclusive contracts (in
which a facility pays a monthly rate for
labor, supplies, and other items);
• Calculating the percent of Medicaid
payments going to compensation if the
Medicaid payment is less than the
facility’s standard rate; and
• Determining a reporting period
(such as provider fiscal year, State fiscal
year, or calendar year) that promotes
consistency without creating
administrative burden or confusion for
providers.
A few commenters made specific
suggestions regarding methodology and
the reporting period. A commenter
recommended the percentage be
calculated by determining (a) a per diem
salary cost amount (compensation costs
divided by total patient days) and (b) a
per diem revenue amount (Medicaid
payments divided by Medicaid days),
and dividing amount (a) by amount (b).
The commenter cautioned, however,
that this method will not provide
information about whether revenues are
being diverted away from patient care.
A commenter noted that a potential
challenge could arise when accounting
for payment adjustments that occur in
one year that are paid in a different year,
which could either under-report or overreport the payments to providers. To
address this, the commenter suggested
that States be required to report
payments based on actual dates of
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service, not the dates payments are
made to providers.
A commenter recommended that the
reporting period should be the facility’s
fiscal year or cost report year, but that
changes in the reporting period should
be allowed if the facility changes
ownership. A commenter suggested we
allow States to determine the reporting
period.
A few commenters suggested we
develop a reporting methodology based
on a review of current nursing facility
and ICF/IID cost reports or other Statelevel reporting practices.
Response: We thank commenters for
their feedback, which we will take into
consideration when developing the
reporting methodology and reporting
template (including reporting period),
that we will be making available for
public comment through the Paperwork
Reduction Act notice and comment
process. This will give the public the
opportunity to provide specific feedback
and help us align the methodology and
reporting process with existing State
practices to the greatest extent possible.
We received public comment on our
solicitation regarding whether we
should require State reporting on per
diem Medicaid FFS payment rates for
nursing facilities and ICFs/IID. A few
commenters wrote in support of adding
this requirement to the reporting
requirement at § 442.43(c). However, we
have finalized a requirement at
§ 447.203(b)(1) in the Ensuring Access
to Medicaid Services final rule
published elsewhere in this Federal
Register requiring State agencies to
publish all Medicaid FFS fee schedule
payment rates on a website that is
accessible to the general public. We are
not finalizing a reporting requirement at
§ 442.43(c) that would largely duplicate
the reporting requirement at
§ 447.203(b)(1).
We received responses to our request
for comment on whether, as part of
future rulemaking, we should require
that a minimum percentage of the
payments for Medicaid-covered nursing
facility services and ICF/IID services be
spent on compensation for direct care
workers and support staff. We received
comments both in support of and in
opposition to the idea of requiring a
minimum threshold. We did not receive
comments providing data supporting a
specific minimum threshold. We thank
commenters for their feedback and will
take these comments into consideration
in pursuing any future rulemaking on
this issue.
After consideration of the comments
received, we are finalizing § 442.43(c)(1)
and (2) as proposed.
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40931
G. Website Posting
Based on our authority in sections
1902(a)(6) and 1902(a)(30)(A) of the Act
with respect to FFS and sections
1902(a)(4) and 1932(c) of the Act with
respect to managed care plans, we
proposed new requirements to promote
public transparency related to the
administration of Medicaid-covered
institutional services. For the reasons
discussed in 88 FR 613888 and 61389
we proposed at § 442.43(d) to require
States to operate a website that meets
the availability and accessibility
requirements at § 435.905(b) and that
provides the results of the newly
proposed reporting requirements in
§ 442.43(b). We requested comment on
whether the proposed requirements at
§ 435.905(b) are adequate to ensure the
availability and the accessibility of the
information for people receiving LTSS
and other interested parties. We noted
that the accessibility and availability
requirements set forth in § 435.905(b)
focus on whether the language used on
a website is accessible to computer
users with disabilities or limited English
proficiency.
At § 442.43(d)(1), we proposed to
require that the data and information
that States are required to report in
§ 442.43(b) be provided on one website,
either directly or by linking to relevant
information on the websites of the
managed care plan(s) that is contracted
to cover nursing facility or ICF/IID
services. We explained our intent for the
States to be ultimately responsible for
ensuring compliance with the proposal,
including to ensure through contractual
arrangements with managed care plans,
as applicable, that the proposed
requirements are satisfied when
required information is provided on
websites maintained by these plans.
Proposed § 442.43(d) contemplates that
some States that provide nursing facility
or ICF/IID services through a managed
care delivery system may decide to
work with their managed care plans to
make the reporting information
available on the managed care plans’
websites, rather than replicating the
information directly on the State’s
website. We requested comment on
whether States should be permitted to
link to websites of these managed care
plans and, if so, whether we should
limit the number of separate websites
that a State could link to in place of
directly reporting the information on its
own website; or whether we should
require that all the required information
be posted directly on a website
maintained by the State.
At § 442.43(d)(2), we proposed to
require that the website include clear
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and easy to understand labels on
documents and links. At § 442.43(d)(3),
we proposed to require that States verify
the accurate function of the website and
the timeliness of the information and
links at least quarterly. The intent of
§ 442.43(d)(3) is to require that States
ensure that the reporting information on
their own website is up to date. We
would also expect, if the State is linking
to a managed care plan’s website, that
the State ensure on at least a quarterly
basis that the links are operational and
continue to link to the information
States are required to report in
§ 442.43(b). We did not propose to
direct that managed care plans must
also review their websites quarterly, but
rather we expect that States would
develop a process with their managed
care plans to ensure that any reporting
information contained on a managed
care plan website is timely and accurate.
If a State obtains information that a
managed care plan website to which the
State links as a means of publishing the
required reporting information is not
being maintained with timely updates
for ongoing accuracy, we expect that the
State would work with the relevant
managed care plan to correct the
situation and, if unsuccessful, cease
linking to that managed care plan’s
website and begin posting the required
reporting information on a Statemaintained website. We requested
comment on this proposal, including
whether this timeframe for website
review is sufficient or if we should
require a shorter timeframe (monthly) or
a longer timeframe (semi-annually or
annually).
At § 442.43(d)(4), we proposed to
require that States include prominent
language on the website explaining that
assistance in accessing the required
information on the website is available
at no cost to the public. We also
proposed to require that States include
information on the availability of oral
interpretation in all languages and
written translation available in each
non-English language, how to request
auxiliary aids and services, and a tollfree and TTY/TDY telephone number.
We requested comment on whether
these requirements would be sufficient
to ensure the accessibility of the
information for people receiving nursing
facility or ICF/IID services and other
interested parties.
We also proposed at § 442.43(e) that
we must report on our website
(Medicaid.gov or a successor website)
the information reported by States to us
under § 442.43(b). Specifically, we
envision that we would update our
website to provide information reported
by each State on the percent of
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payments for Medicaid-covered services
delivered by nursing facilities and ICFs/
IID that is spent on compensation to
direct care workers and support staff
(and, if added to the provision,
information on median hourly wages)
which would allow the information to
be compared across States and
providers. We also envisioned using
data from State reporting in future
iterations of the CMS Medicaid and
CHIP Scorecard.92 In the proposed rule
at 88 FR 61389, we noted that if, based
on public comment, we add a
requirement that States provide
information about their payment rates
for nursing facility and ICF/IID services,
we would provide this information on
our website as a way of providing easyto-find context for the other payment
information reported by States. We
currently do not intend to include the
information on payment rates in the
CMS Medicaid and CHIP Scorecard.
We received public comment on these
proposals. The following is a summary
of these comments and our responses.
Comment: A few commenters stated
that they supported requiring States to
have only one website with all the data
and information related to reporting
requirements. A commenter noted that
this makes accessing data much easier
and more accurate than external links to
managed care plans’ websites. A
commenter requested we also require
that data be in a downloadable format
that supports use of the data, to support
analysis by the public, researchers, and
other interested parties.
Response: We decline to make
modifications to this requirement. We
agree with commenters that having one
website on which the public may access
data is a good practice. However, we
have finalized a requirement at
§ 441.313(a)(1) in the Ensuring Access to
Medicaid Services final rule published
elsewhere in this Federal Register that
gives States flexibility to maintain either
a single website or link to managed care
plan websites. To provide parity for
both HCBS and institutional Medicaid
services, we are finalizing the
substantive requirement at § 442.43(d)
as proposed, allowing States to meet
this requirement by linking to
individual MCO or PIHP websites. (We
note that we are finalizing § 442.43(d)
with technical modifications to correct
a grammatical error.)
Although we decline to add technical
specifications for the data format to the
regulatory text, we do expect that States
(or managed care plans, as applicable)
92 CMS’s Medicaid and CHIP Scorecard. Accessed
at https://www.medicaid.gov/state-overviews/
scorecard/.
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will make this information available in
a format that is accessible,
downloadable, and otherwise usable for
members of the public.
Comment: A commenter noted
support for the requirement that
language on the website be clear and
easy to understand.
Response: We thank the commenter
for their support. We are finalizing the
requirement at § 442.43(d)(1) as
proposed.
Comment: A few commenters
supported quarterly review of the
website. A commenter suggested we
require that missing or inaccurate
information be remedied within 2 weeks
of the review. The commenter stated
that delayed reviews can lead to the
posting of inaccurate data, which
hampers transparency initiatives. A
commenter, noting the importance of
transparency in reporting, stated that
States should expect managed care
plans to review their websites on a
monthly basis at a minimum.
Response: We are finalizing the
review requirement at § 442.43(d)(2) as
proposed. We agree with commenters
that quarterly review is an appropriate
review frequency that balances
oversight with administrative burden,
given that the data itself are updated
annually. We note that States or
managed care plans have discretion to
review the website more frequently as
needed. We also decline to require a
specific deadline by which outdated or
erroneous data or broken links are to be
updated, noting that issues might take
different amounts of time to resolve. We
expect that States will ensure that
outdated or erroneous information, or
broken links, will be remedied as
promptly as possible. In addition, if a
State becomes aware that posted
information is outdated or erroneous
and the issue cannot be addressed very
rapidly, we expect that the State (or
managed care plan) will publish a
notice on the web page identifying the
information concerned and stating that
revised information is expected to be
published in the future, giving the
timeframe if available, so that the public
will be appropriately cautioned not to
rely on the outdated or erroneous
information.
Comment: A few commenters stated
that the accessibility standards outlined
in the proposal appear sufficient to
ensure access and availability of
information, including to people with
disabilities, people with limited English
proficiency, and people who require the
information in other languages. A few
commenters also supported the
requirement requiring prominent
language that additional assistance is
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available at no cost, with clear
instructions for requesting assistance or
additional accommodations. A
commenter suggested that the website
include the contact information for a
‘‘designated individual within the State
Medicaid agency responsible for nursing
facility oversight who is available to
address any accessibility concerns.’’
One commenter recommended we
require the website include the State
Medicaid agency contact information so
that members of the public can contact
someone with questions about the data.
Response: We are finalizing the
accessibility requirements at § 442.43(d)
introductory text and (d)(3) as proposed.
We decline to formalize any additional
requirements in the regulatory text but
agree that including relevant contact
information on the website is important
for ensuring the information is available
and accessible to the public. We also
note that having contact information on
the website for a relevant contact at the
State Medicaid agency would aid in the
quarterly review finalized at
§ 442.43(d)(2) by allowing the public to
notify the State of any errors or
operational issues with the website. We
encourage States to implement this
practice, even though we are not
formally requiring its adoption.
Comment: A commenter did not
support requiring the public posting of
facilities’ cost data. The commenter
noted that this may be particularly
problematic for ICFs/IID, which range in
size and can be quite small. The
commenter was concerned that
publicizing facilities’ cost data could
lead to inaccurate (presumably negative)
conclusions being drawn about the
facilities.
Response: The requirement is only for
States to publish the percent of a
facility’s Medicaid payments that are
going to worker compensation, not more
detailed cost data (such as the amount
of Medicaid payments or the amount
paid to workers). While States may, at
their discretion, decide to publish more
detailed information, we believe the
Federal requirement strikes a balance
between promoting transparency and
allowing for the sharing of aggregated
(rather than granular) data about
facilities’ financial activities.
We did not receive comments on our
proposal at § 442.43(e).
After consideration of the comments
received, we are finalizing § 442.43(d)
with minor technical modifications to
change ‘‘MCO and PIHP websites’’ to
‘‘MCO’s and PIHP’s websites.’’ We are
finalizing § 442.43 (e) as proposed.
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H. Applicability Date and Application
to Managed Care
For reasons discussed in 88 FR 61389
through 61390, we proposed, at
§ 442.43(f), to provide States with 4
years to implement these requirements
in FFS delivery systems following the
effective date of the final rule. This
proposed timeline reflects feedback
from States and other interested parties
that it could take 3 to 4 years for States
to complete any necessary work to
amend State regulations, policies,
operational processes, information
systems, and contracts to support
implementation of the proposals
outlined in this section. We invited
comments on whether this timeframe is
sufficient, whether we should require a
shorter or longer timeframe (such as 3
or 5 years) to implement these
provisions, and if a shorter or longer
timeframe is recommended, the
rationale for that shorter or longer
timeframe.
In the context of Medicaid coverage of
nursing facility and ICF/IID services, we
believe that the foregoing reasons for the
reporting requirements proposed in this
rule apply to the delivery of these
services regardless of whether they are
covered directly by the State on an FFS
basis or by a managed care plan for its
enrollees. Accordingly, we proposed to
apply the requirements at § 442.43 to
both FFS and managed care delivery
systems through adoption by reference
in a new regulation in 42 CFR part 438,
which generally governs Medicaid
managed care programs. Specifically,
we proposed to add a cross-reference to
the requirements in proposed
§ 438.72(a) to be explicit that States that
include nursing facility and/or ICF/IID
services in their MCO or PIHP contracts
would have to amend their contracts to
the extent necessary to comply with the
requirements at § 442.43 and proposed
at § 442.43(b) that payments from MCOs
and PIHPs count as Medicaid payments
for purposes of those requirements. We
believe this would make the obligations
of States that implement LTSS programs
through a managed care delivery system
clear and consistent with the State
obligations for Medicaid FFS delivery
systems. Additionally, for States with
managed care delivery systems under
the authority of section 1915(a), 1915(b),
1932(a), or 1115(a) of the Act and that
include coverage of nursing facility
services and/or ICF/IID services in the
MCO’s or PIHP’s contract, we proposed
to provide States until the first managed
care plan contract rating period that
begins on or after the date that is 4 years
after the effective date of the final rule
to implement these requirements. We
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40933
solicited feedback on the proposed
application of the reporting requirement
to managed care delivery systems, and
the proposed timeframe for compliance.
We also invited comments on whether
the proposed effective date timeframe is
sufficient, whether we should require a
longer timeframe (such as 5 years) to
implement these provisions, and if a
longer timeframe is recommended, the
rationale for that longer timeframe.
We received comments on these
proposals. The following is a summary
of these comments and our responses.
Comment: A few commenters
suggested that we shorten the timeframe
for compliance, especially given the
importance of the data being collected
and the urgency of the understaffing in
facilities. A commenter stated that 4
years was unnecessarily long and
recommended 2 years as a reasonable
alternative. A few commenters
recommended 3 years, stating that
States and facilities should already have
much of the required data available.
A few commenters recommended a
longer timeframe than 4 years, such as
6 or 7 years. These commenters cited
challenges such as limited State staff
and financial resources to dedicate to
completing this reporting requirement;
obligations to comply with other new
reporting obligations; a backlog of
eligibility determinations following the
end of the COVID–19 Public Health
Emergency; support needed to help
providers, especially smaller providers,
update their systems to report the
necessary data; and time and resources
needed to update States’ systems to
collect, process, and audit the required
data.
One commenter supported the 4-year
applicability date if the rule is finalized
as proposed.
Response: We are finalizing the 4-year
applicability date that we proposed at
§ 442.43(f). We believe that 4 years
strikes an appropriate balance between
obtaining these data as quickly as
possible and acknowledging that some
States and providers will need time to
update systems. As noted in prior
responses, we also intend to make the
reporting methodology and reporting
format available to the public through
the Paperwork Reduction Act notice and
comment process. We believe the 4-year
delayed applicability date provides
sufficient time for this process, as well
as any subregulatory guidance or
technical assistance needed to assist
States to prepare for and be in
compliance with the requirements.
We did not receive specific comments
on the proposal to add a cross-reference
at § 438.72(a) to apply the reporting
requirements finalized at § 442.43 to
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managed care plans and the associated
applicability date for MCOs and PIHPs.
After consideration of the comments
received, we are finalizing the substance
of § 442.43(f) as proposed, but with
minor modifications to correct
erroneous uses of the word ‘‘effective.’’
We are retitling the requirement at
§ 442.43(f) Applicability date (rather
than Effective date). We are also
modifying the language at § 442.43(f) to
specify that States must comply with
the requirements in § 442.43 beginning
4 years from the effective date of this
final rule, rather than stating that
§ 442.43 is effective 4 years after the
effective date of the final rule.
Additionally, we are finalizing both
§§ 442.43(f) and 438.72(a) with
technical modifications (discussed in
the next paragraph) regarding the
applicability date for States providing
nursing facility and ICF/IID services
through managed care plans. The
purpose of these modifications is to
streamline § 438.72(a) and consolidate
all applicability dates in § 442.43(f). We
also believe these modifications better
align the structure of §§ 438.72(a) and
442.43(f) with similar requirements
finalized at § 438.72(b) and a number of
applicability dates in the Ensuring
Access to Medicaid Services Final Rule
published elsewhere in this Federal
Register.
As proposed, § 438.72(a) included a
requirement that States that included
nursing facility or ICF/IID services in
their MCO and PIHP contracts must
comply with § 442.43, as well as
specifying that States must comply with
§ 442.43 by the first rating period for
contracts with the MCO or PIHP
beginning on or after 4 years after the
effective date of the final rule. We are
striking the applicability date language
from § 438.72(a) and finalizing
§ 438.72(a) with modified language that
simply specifies that the State must
comply with requirements at § 442.43
for nursing facility and ICF/IID services.
We are finalizing § 442.43(f) with a
modification to add (with minor
modifications) the language that had
been originally proposed at § 438.72(a),
specifying that in the case of the State
that implements a managed care
delivery system under the authority of
section 1915(a), 1915(b), 1932(a), or
1115(a) of the Act and includes nursing
facility services or ICF/IID services,
States must comply beginning the first
rating period for contracts with the
MCO or PIHP beginning on or after 4
years after the effective date of the final
rule.
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I. Future Guidance and Interested
Parties Advisory Group Comment
Solicitation
As noted in the proposed rule at 88
FR 61390, as a result of finalizing the
proposals as discussed, we will
establish new processes and forms for
States to meet the reporting
requirements, provide additional
technical information on how States can
meet the reporting requirements, and
establish new templates consistent with
requirements under the Paperwork
Reduction Act. We invited comment on
this approach, particularly regarding
any additional guidance we would need
to provide or actions we would need to
take to facilitate States’ implementation
of these proposed provisions.
Finally, in consideration of potential
future rulemaking, we requested
comment on whether we should
propose that States implement an
interested parties’ advisory group in
parallel with proposed requirements at
§ 447.203(b)(6) finalized in the Ensuring
Access to Medicaid Services rule
published elsewhere in this Federal
Register, which requires States to
establish an interested parties advisory
group to advise and consult on the
sufficiency of FFS rates paid to direct
care workers providing certain HCBS.
We solicited comment from the public
on whether we should consider
developing requirements for States to
establish a similar group to advise and
consult on nursing facility and ICF/IID
service rates.
We received a few comments from the
public that supported this proposal. We
thank commenters for their feedback
and will take the comments into
consideration should we pursue
rulemaking in the future.
IV. Provisions of the Final Regulations
In this final rule, we are adopting the
provisions of the September 6, 2023,
proposed rule with the following
modifications:
• In § 442.43(a)(1), we modified
paragraph (a)(1)(ii) to specify that
compensation includes benefits, such as
health and dental benefits, life and
disability insurance, paid leave,
retirement, and tuition reimbursement.
• In § 442.43(a)(2), we redesignated
paragraphs (a)(2)(vi) through (x) as
paragraphs (a)(2)(vii) through (xi),
respectively, and added a new
paragraph (a)(2)(vi) to include direct
support professionals to the definition.
Additionally, we are finalizing the
newly redesignated paragraph (a)(2)(xi)
with a modification to include nurses
and other staff that providing that
clinical supervision.
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• In § 442.43(a)(3), we redesignated
paragraph (a)(3)(vi) as paragraph
(a)(3)(vii) and added a new paragraph
(a)(3)(vi) to add security guards to the
definition of support staff.
• We are finalizing a new definition
of excluded costs at § 442.43(a)(4),
which are costs reasonably associated
with delivering Medicaid-covered
nursing facility or ICF/IID services that
are not included in the calculation of
the percentage of Medicaid payments
that is spent on compensation for direct
care workers and support staff. Such
costs are limited to: (1) costs of required
trainings for direct care workers and
support staff (such as costs for qualified
trainers and training materials); (2)
travel costs for direct care workers and
support staff (such as mileage
reimbursements and public
transportation subsidies); and (3) costs
of personal protective equipment for
facility staff.
• In § 442.43(b), we removed ‘‘by
delivery system and,’’ added language
specifying that the Medicaid payments
used in the required calculation do not
include excluded costs, and added a
cross-reference to § 442.43(b)(3). We are
also finalizing technical modifications
to improve clarity and correct
grammatical errors.
• We are finalizing a new
§ 442.43(b)(3) to specify that States must
exclude data from Indian Health Service
and Tribal health program providers
subject to 25 U.S.C. 1641.
• In § 442.43(d), we made minor
technical modifications for grammar
and readability, including changing
‘‘MCO and PIHP websites’’ to ‘‘MCO’s
and PIHP’s websites.’’
• In § 442.43(f), we retitled the
requirement Applicability date and
made minor modifications to the
language to specify that States must
comply with § 442.43 beginning 4 years
after the effective date of this final rule.
We also added to § 442.43(f) language
(with minor modifications) that had
been proposed in § 438.72(a) specifying
that in the case of the State that
implements a managed care delivery
system under the authority of section
1915(a), 1915(b), 1932(a), or 1115(a) of
the Act and includes nursing facility
services or ICF/IID services, States must
comply beginning the first rating period
for contracts with the MCO or PIHP
beginning on or after 4 years after the
effective date of the final rule.
• In § 438.72(a), we struck the
language specifying an applicability
date; the substance of this language was
added to § 442.43(f). We streamlined the
language at § 43.72(a) to specify that
States must comply with requirements
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at § 442.43 for nursing facility and ICF/
IID services.
• Throughout chapter 42 of the CFR
we have updated references to
‘‘§ 483.70(e)’’ to replace them with
‘‘§ 483.71’’, as appropriate to reflect the
new designation for the facility
assessment requirements.
• In § 483.35, we redesignated the
updates to existing paragraph (a)(1) as a
new paragraph (b) entitled ‘‘Total nurse
staffing (licensed nurses and nurse
aides)’’ and renumbered the existing
paragraphs in § 483.35 accordingly.
• In § 483.35, we added a requirement
at new paragraph (b)(1) for facilities to
meet a minimum of 3.48 HPRD for total
nurse staffing. Requirements at new
paragraphs (b)(1)(i) and (ii) require
facilities to also have a minimum of RN
HPRD of 0.55 and NA HPRD of 2.45. In
this redesignated paragraph we also are
not including the proposed requirement
for determinations of compliance with
HPRD requirements to be made based
on the most recent available quarter of
PBJ system data submitted in
accordance with § 483.70(p).
• In § 483.35, we revised newly
redesignated paragraph (c)(1) to add that
facilities may be exempted from 8 hours
per day of the 24/7 RN onsite
requirement if they meet the exemption
criteria outlined in new paragraph (h).
• In § 483.35, we added a new
paragraph (c)(2) to require that during
any periods when the onsite RN
requirements in paragraph (c)(1) are
exempted under paragraph (h), facilities
must have a registered nurse, nurse
practitioner, physician assistant, or
physician available to respond
immediately to telephone calls from the
facility.
• In § 483.35, we redesignated
existing paragraphs (e) and (f) as
paragraph (f) and (g), respectively. In
newly redesignated paragraph (f), we
revised the heading to read ‘‘Nursing
facilities: Waiver of requirement to
provide licensed nurses and a registered
nurse on a 24-hour basis.’’ In newly
redesignated paragraph (g), we revised
the heading to read ‘‘SNFs: Waiver of
the requirement to provide services of a
registered nurse for at least 112 hours a
week’’.
• In § 483.35, we redesignated
proposed new paragraph (g) as a new
paragraph (h) and revised the heading to
read ‘‘Hardship exemptions from the
minimum hours per resident day and
registered nurse onsite 24 hours per day,
for 7 days a week’’.
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• In § 483.35, we revised new
paragraph (h) to add that a facility may
be exempted from both the minimum
hours per resident day required in
paragraph (b) and 8 hours per day of the
24/7 RN onsite requirement at
paragraph (c)(1).
• In § 483.35, we revised new
paragraph (h) to withdraw the 20 mile
distance qualifier for an exemption from
the minimum hours per resident day
requirement. Qualifying location criteria
to be eligible for an exemption is based
on workforce unavailability only.
• In § 483.35, we revised new
paragraph (h) to modify the
transparency requirements that a facility
must meet to receive an exemption from
the minimum hours per resident day
and 8 hours of the 24/7 RN onsite
requirements. In addition to
demonstrating a good faith effort to hire
and identifying the annual amount of
funds dedicated to hiring efforts,
facilities must also post in the facility
and provide notices to residents and the
LTC ombudsman of their exemption
status and inability to comply with the
minimum staffing requirements,
including the degree to which they do
not meet the staffing requirements.
• In new § 483.71, we modified the
proposal at paragraph (b) to clarify the
required involvement of specific staff in
the development of the facility
assessment. LTC facility staff, including
nursing home leadership (governing
body, etc.) and direct care staff (RNs;
LPN/LVNs; NAs; representatives of
direct care staff, if applicable; and other
specialties) must be offered the
opportunity to actively participate.
Facilities must also solicit and consider
input from residents, and resident
representatives.
• We revised the implementation
timeframe to reflect the following:
++ Non-rural Facilities
++ Phase 1 (90 days after publication)—
Facility Assessment Updates
(§ 483.71)
++ Phase 2 (2 years after publication)—
Minimum 3.48 HPRD for total nurse
staffing and 24/7 RN Requirements
(§ 483.35(b)(1) and (c)(1))
++ Phase 3 (3 years after publication)—
Minimum .55 RN and 2.45 NA HPRD
Requirements (§ 483.35(b)(1)(i) and
(ii))
++ Rural Facilities (as defined by OMB)
—Phase 1 (90 days after publication)—
Facility Assessment Updates
(§ 483.71)
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40935
—Phase 2 (3 years after publication)—
Minimum of 3.48 HPRD for total
nurse staffing HPRD and 24/7 RN
Requirements (§ 483.35(b)(1) and
(c)(1))
—Phase 3 (5 years after publication)—
Minimum .55 RN and 2.45 NA HPRD
Requirements (§ 483.35(b)(1)(i) and
(ii))
V. Collection of Information
Requirements
Under the Paperwork Reduction Act
of 1995, we are required to provide 60day notice in the Federal Register and
solicit public comments before a
collection of information requirement is
submitted to the Office of Management
and Budget (OMB) for review and
approval. In order to fairly evaluate
whether an information collection
should be approved by OMB, section
3506(c)(2)(A) of the Paperwork
Reduction Act of 1995 requires that we
solicit comment on the following issues:
• The need for the information
collection and its usefulness in carrying
out the proper functions of our agency.
• The accuracy of our estimate of the
information collection burden.
• The quality, utility, and clarity of
the information to be collected.
• Recommendations to minimize the
information collection burden on the
affected public, including automated
collection techniques.
In analyzing information collection
requirements (ICRs), we rely heavily on
wage and salary information. Unless
otherwise indicated, we obtained all
salary information from the May 2022
National Occupational Employment and
Wage Estimates, BLS at https://
www.bls.gov/oes/current/oes_nat.htm.
We have calculated the estimated
hourly rates in this rule based upon the
national mean salary for that particular
position increased by 100 percent to
account for overhead costs and fringe
benefits. The wage and salary data from
the BLS do not include health,
retirement, and other fringe benefits, or
the rent, utilities, information
technology, administrative, and other
types of overhead costs supporting each
employee. The HHS wide guidance on
preparation of regulatory and paperwork
burden estimates states that doubling
salary costs is a good approximation for
including these overhead and fringe
benefit costs.
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Table 5 presents the BLS occupation
code and title, the associated LTC
facility staff position in this regulation,
the estimated average or mean hourly
wage, and the adjusted hourly wage
(with a 100 percent markup of the salary
to include fringe benefits and overhead
costs). Where available, the mean hourly
wage for Nursing Care Facilities (Skilled
Nursing Facilities) 93 was used.
BILLING CODE 4120–01–C
Table 5: Summary Information of Estimated Hourly Costs
Q9-1141
11-9111
Q9-1216
143-6013
Q9-1229
Q9-1031
11-3013
Q9-2061
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31-1131
BLS Occupation Title
Registered Nurses
(Nursing Care Facilities
(Skilled Nursing
Facilities))
Medical and Health
Services Managers
(Nursing Care Facilities
(Skilled Nursing
Facilities))
General Internal Medicine
Physicians
(General Medical and
Surgical Hospitals)
Medical Secretaries and
Administrative Assistants
(General Medical and
Surgical Hospitals)
Physician, All Other
(Specialty (except
Psychiatric and Substance
Abuse))
Dieticians and
Nutritionists
(Nursing Care Facilities
(Skilled Nursing
Facilities))
Facilities Manager
Licensed Practical and
Licensed Vocational
Nurses
(Nursing Care Facilities
(Skilled Nursing
Facilities))
Nursing Assistants
(Nursing Care Facilities
(Skilled Nursing
Facilities))
We solicited public comments on
each of these issues for the following
sections of this document that contain
information collection requirements
(ICRs). Based upon our analysis of
93 https://www.bls.gov/oes/current/naics4_
623100.htm.
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!Registered Nurse
$37.11
!Director of Nursing
(DON) and
!Administrator
$49.91
$100
!Medical Director
$93.90
$188
k'\dministrative
k'\ssistant
$20.30
$41
[Medical Director
$135.86
$272
!Food and Nutrition
!Manager
$31.63
$63
[Facilities Manager
$50.95
$102
!Licensed Nurse
$28.10
$56
Certified Nursing
[Assistance (CNA)
$16.90
$34
Mean
Hourly
Wage
($/hour)
comments received, we are revising our
burden estimates and adding a burden
estimate for LTC facilities (LTCFs) to
solicit and consider any input received
by residents, resident representatives,
and family members. These revisions
and the addition are detailed below:
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A. ICRs Regarding § 483.35 Nursing
Services
At § 483.35(a), we proposed that each
LTC facility would have to provide 0.55
HPRD for RNs and 2.45 HPRD for NAs.
In the proposed rule, we analyzed the
COI requirement as indicated below.
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ER10MY24.086</GPH>
Occupation Code
Adjusted Hourly Wage (with
100% markup for fringe
benefits & overhead)
($/hour) (rounded to nearest
dollar)
$74
Associated Position
Title in this
Regulation
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These proposed requirements would
require each LTC facility to review and
modify, as necessary, its policies and
procedures regarding nurse staffing. The
review and modifications to the
necessary policies and procedures
would require activities by the director
of nursing (DON), an administrator, and
an administrative assistant. The DON
and the administrator would need to
review the requirements, as well as the
facility assessment, to determine if any
changes are necessary to the policies
and procedures and, if so, make those
necessary changes. The DON would
then need to work with a medical
administrative assistant to ensure that
those changes were made to the
appropriate documents and ensure that
all appropriate individuals in the
facility were made aware of the changes.
We estimated that these activities would
require 2 burden hours for an
administrator at a cost of $200 ($100 ×
2 hours), 3 hours for the DON at a cost
of $300 ($100 × 3 hours), and 1 hour for
the administrative assistant at a cost of
$41 ($41 × 1 hour). Hence, for each LTC
facility the burden estimate would be 6
hours (2 + 3 + 1) at a cost of $ 541 ($200
+ $300 + $41). There are currently
14,688 LTC facilities. Thus, the burden
for all LTC facilities would be 88,128
(14,688 × 6 hours) hours at a cost of
$7,946,208 ($541 × 14,688 LTCFs).
Comment: Numerous commenters
generally contended the proposed
requirements were too burdensome and
expensive. One provider organization
stated that the estimate for the ICR
burden that included two hours for an
administrator, three hours for the DON,
and one hour for an administrative
assistant were grossly underestimated.
The commenter asserted that LTC
facilities would be required to review
and modify nurse staffing policies and
procedures to become compliant with
the requirements, develop and modify
contracts with staffing agencies, engage
in budget modification and staffing
model reevaluations based on the staff
available to meet the new requirements,
and determine appropriate resident
placement efforts when the facility
cannot be compliant with the
requirements. The commenter also
noted that there were likely other
activities that would be required as
well.
Response: We agree with the
commenter that the burden estimated in
the proposed rule for proposed
§ 483.35(a) was understated. We note
that as discussed in section II.B.3. of
this rule, we are finalizing at § 483.35(b)
to require LTC facilities to provide a
minimum total nurse staffing
requirement of 3.48 HPRD (paragraph
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(b)(1) introductory text), which includes
0.55 HPRD of RNs (paragraph (b)(1)(i))
and 2.45 HPRD of NAs (paragraph
(b)(1)(ii)).
We are revising and increasing the
burden estimate particularly to account
for additional activities addressed by
the commenters, including the review
and modification of contracts, staffing
models, and contingency planning to
address when staffing or other resource
issues arise. Thus, we are revising our
burden estimate to allow for 8 hours at
a cost of $800 ($100 × 8) for the
administrator, 7 hours at a cost of $700
($100 × 7 hours) for the DON, and 4
hours at a cost of $164 ($41 × 4 hours)
for the administrative assistant. Hence,
the total estimated burden for each LTC
facility would be 19 hours at cost of
$1,664. For all 14,688 LTC facilities, the
total estimated burden would be
279,072 hours (19 hours × 14,688) at a
cost of $24,440,832 ($1,664 × 14,688).
B. ICRs Regarding § 483.71 Facility
Assessment
At § 483.71 Facility assessment, we
proposed to relocate the existing
requirements at § 483.70(e) Facility
assessment to the new § 483.71. We also
proposed to modify certain specific
requirements and add a third section
that will set forth the activities for
which we expect LTC facilities to use
their facility assessments.
We proposed to relocate current
§ 483.70(e)(1)(i) through (v) to
§ 483.71(a)(1)(i) through (v). This
section sets forth what the facility
assessment must address or include, but
is not limited to, regarding the facility’s
resident population. At
§ 483.71(a)(1)(ii), we proposed to add
‘‘using evidence-based, data-driven
methods’’ (such as the MDS resident
assessments or data from QAPI
activities) and ‘‘behavioral health
issues’’ so that the requirement would
then read, ‘‘The care required by the
resident population, using evidencebased, data driven methods that
consider the types of diseases,
conditions, physical and behavioral
health issues, cognitive disabilities,
overall acuity, and other pertinent facts
that are present within that population.’’
At § 483.71(a)(1)(iii), we proposed to
add ‘‘and skill sets’’ so the requirement
would read, ‘‘The staff competencies
and skill sets that are necessary to
provide the level and types of care
needed for the resident population.’’
These modifications constitute
clarifications in the requirements and
are not new requirements for which the
LTC facilities must comply. Hence, we
will not be analyzing any new or
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40937
additional burden related to those
changes.
We proposed to relocate the current
requirements at § 483.70(e)(2)(i) through
(vi) to § 483.71(a)(2)(i) through (vi). At
§ 483.71(a)(2)(iii), we proposed to add
‘‘behavioral health’’ so that the
requirement would read, ‘‘Services
provided, such as physical therapy,
pharmacy, behavioral health, and
specific rehabilitation therapies.’’
Behavioral health services requirements
are set forth at § 483.40 and are integral
to the health of residents. All LTC
facilities should be considering the
behavioral health care needs of their
residents. Hence, this change does not
constitute a new requirement but a
clarification. Hence, we did not analyze
any new or additional burden related to
this change.
We proposed to add a new
requirement at § 483.71(a)(4) for LTC
facilities to incorporate the input of
facility staff and their representatives
into their facility assessment. These staff
categories included, but were not
limited to, nursing home leadership,
management, direct care staff and
representatives and other service
workers. LTC facilities already include
many of these categories of individuals
when they conduct or update their
facility assessments. Thus, this
requirement constitutes a clarification
and not a new requirement. Hence, we
did not analyze any new or additional
burden related to this change.
We proposed to add new
requirements at § 483.71(b). These
requirements set forth specific activities
for which the LTC facilities would be
expected to use their facility
assessments. These assessments would
inform staffing decisions to ensure that
a sufficient number of staff with the
appropriate competencies and skill sets
necessary to care for its residents’ needs
as identified through resident
assessments and plans of care as
required in § 483.35(a)(3); consider
specific staffing needs for each resident
unit in the facility, and adjust as
necessary based on changes its to
resident population; consider specific
staffing needs for each shift, such as
day, evening, night, and adjust as
necessary based on any changes to its
resident population; and, develop and
maintain a plan to maximize
recruitment and retention of direct care
staff.
LTC facilities are either already using
their facility assessments for these
activities or will be based upon the
other requirements in the proposed rule,
except for using their facility
assessments to develop and maintain a
plan to maximize recruitment and
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retention of direct care staff. Based upon
our experience with LTC facilities, these
facilities are already working on
recruitment and retention of direct care
staff. However, these facilities would
need to review their current efforts to
determine if there are opportunities to
improve their efforts and, if so, decide
how to do so. The LTC facility’s facility
assessment would require the
development of a plan to maximize
recruitment and retention and
accomplish the associated tasks and
would also be an invaluable tool in
assessing and maintaining sufficient
staff for their facility.
The staff involved in developing this
plan would vary by the type of care and
services provided by the individual
facilities. Some LTC facilities might
have various therapists on staff, such as
physical and occupational therapists.
Others might employ psychologists,
social workers, or complementary
medicine or American Indian/Alaska
Native Traditional Healers who provide
behavioral health services to residents.
When developing a recruitment and
retention plan, we encourage LTC
facilities to include participation and
input from the various types of direct
care staff in their facilities and
representatives of these workers. We
note that the time spent by these staff to
participate in the facility assessment
process should not be substituted for the
direct care minimums for RNs and NAs
required under this rule. All LTC
facilities provide 24-hour nursing
services and the direct care nursing staff
would include RNs, other licensed
nurses (LPNs or LVNs), and nursing
assistants (NAs). For the purpose of
estimating the burden for developing a
recruitment and retention plan, we
estimated the burden for an
administrator, the DON, and one
individual from each of the nursing
categories, an RN, LPN/LVN, and NA to
develop the plan. These individuals
would have to meet to develop a plan
and then the administrator will need to
obtain approval for the plan from the
governing body. During the
development process and after approval,
an administrative assistant would need
to provide support and ensure the plan
is disseminated and saved appropriately
in the facility’s records. We estimated
that developing a recruitment and
retention plan would require 6 hours for
an administrator at a cost of $600 ($100
× 6 hours); 6 hours for the DON at a cost
of $600 ($100 × 6 hours); 4 hours for a
RN at a cost of $296 ($74 × 4 hours); 2
hours for a LPN/LVN at a cost of $112
($56 × 2 hours); 2 hours for a nursing
assistant at a cost of $68 ($34 × 2); and,
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2 hours for an administrative assistant
$82 ($41 × 2 hours). Thus, the burden
for each LTC facility is 22 (6 + 6 + 4 +
2 + 2 + 2) hours at an estimated cost of
$1,758 ($600 + $600 + $296 + $112 +
$68 + 82). For all 14,688 LTC facilities
the burden would be 323,136 hours
(14,688 LTCFs × 22 hours) at an
estimated cost of $25,821,504 ($1,758 ×
14,688 LTCFs).
Comment: Numerous commenters
generally contended the proposed
requirements regarding the facility
assessment were too burdensome and
expensive. One provider organization
stated that the estimate of 22 staff hours
for the facility assessment requirement
grossly underestimated the burden to a
LTC facility. One provider organization
stated that complying with this
requirement would require multiple
staff members a significant amount of
time to comply. Also, compliance
would require an ongoing effort by
multiple staff members. The commenter
acknowledged that estimating the
burden is complicated since it depends
upon the number of revisions and is
influenced by the changes in the
resident population and staff in each
facility.
Response: We agree with the
commenter that there are more activities
related to complying with the facility
assessment requirement than were
considered in the proposed rule. As
discussed in detail in section II.B.6. of
this rule, we are finalizing as proposed
all of the proposed changes regarding
the facility assessment, except for
§ 483.71(b) that has been revised to
require LTC facilities to require the
active participation of the nursing home
leadership and management, including
but not limited to, a member of the
governing body, the medical director, an
administrator and the director of
nursing; and direct care staff, including
but not limited to, RNs, LPNs/LVNs,
and NAs, and representatives of the
direct care staff, if applicable. The LTC
facility must also solicit and consider
input received from residents, resident
representatives, and family members.
Based upon our review and analysis
of comments related to this estimated
burden and our substantive revisions in
this final rule, we have revised the
estimated burden for the facility
assessment requirement as detailed
below.
In the proposed rule, for the
development of this staffing plan the
estimated burden was 22 hours at a cost
of $1,758. Based upon the comments
received and further analysis, we now
estimate that developing a recruitment
and retention plan would require 10
hours for an administrator at a cost of
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$1000 ($100 × 10 hours); 10 hours for
the DON at a cost of $1000 ($100 × 10
hours); 8 hours for a RN at a cost of $592
($74 × 8 hours); 4 hours for a LPN/LVN
at a cost of $224 ($56 × 4 hours); 5 hours
for a nursing assistant at a cost of $170
($34 × 5 hours); and, 3 hours for an
administrative assistant $123 ($41 × 3
hours). Thus, the burden for each LTC
facility is 407 (10 + 10 + 8 + 4 + 5 +
3 = 40) hours at an estimated cost of $
3,109 ($ 1000 + $1000 + $592 + $224 +
$170 + 123). For all 14,688 LTC
facilities the burden would be 587,520
hours (14,688 LTCFs × 40) at an
estimated cost of $45,664,992 ($3,109 ×
14,688 LTCFs).
In addition, this rule finalizes
revisions to the facility assessment that
would also require additional burden.
For § 483.71(b), we proposed that LTC
facilities would be required to include
the input of facility staff, including, but
not limited to nursing home leadership,
management, direct care staff, the
representatives of direct care employees,
and staff providing other services. We
did not assess a burden for this proposal
because it was a clarification and not a
new requirement. However, as finalized
by this rule, § 483.71(b) now requires
that the LTC facility ensure the active
involvement of nursing home leadership
and management, including but not
limited to, a member of the governing
body, the medical director, an
administrator and the director of
nursing; and, direct care staff, including
but not limited to, RNs, LPNs/LVNs,
NAs; and, representatives of direct care
staff, if applicable. The LTC facility
must also solicit and consider input
from residents, resident representatives,
and family members. We believe that
many of the specifically named staff
positions are already included by most
LTC facilities in their facility
assessment development, review, and
updating process. We are also not
estimating a burden for the active
participation of representatives of direct
care staff, if applicable, because
assisting those they represent already
falls within their responsibilities. If any
of the direct care staff have
representatives, the LTC facility should
be aware of those individuals. However,
soliciting and considering any input
received by residents, resident
representatives, family members is a
new requirement. We are not estimating
a burden for reviewing the input since
this would be part of the facility
assessment process. Thus, a burden
estimate is being assessed for the
activities required to comply with that
requirement. These revisions are
detailed below.
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For a LTC facility to solicit input from
residents, resident representatives, and
family members would require the LTC
facility to identify all of these
individuals, make them aware of the
facility assessment process, and then
solicit their input. LTC facilities would
differ in how they communicate to the
named individuals. Although LTC
facilities are not required to establish
resident or family groups, residents do
have the right to organize and
participate in resident groups
(§ 483.10(f)(5)). If residents do form
resident or family groups, the LTC
facility must provide the group(s) with
private space for them to meet and take
reasonable steps, with the approval of
the group, to make residents and family
members aware of upcoming meetings
in a timely manner. Based upon our
experience, most LTC facilities have
established resident or family groups.
LTC facilities could easily use these
established communications pathways,
as well as posting notices and sending
emails to solicit input for the facility
assessment from the named individuals.
To comply with the requirement to
solicit the input of these individuals
identified in the facility assessment
requirement, we estimate this would
require an administrator 1 hour at $100
per hour ($100 × 1 hour = $100) to draft
the text of the communication and then
an administrative assistant 2 hours at
$41 per hour ($41 × 2 hours = $82) to
forward the communication to the
required individuals. The text of the
communication should include a brief
description of the facility assessment
process, the opportunity to submit
input, how that input can be submitted,
and the deadline to submit the input.
40939
This would likely include posting of a
notice in the LTC facility and
forwarding the communication to the
facility’s resident or family group(s).
The consideration of this input would
then be part of the facility assessment
review and updating process.
Hence, the burden for each LTC
facility would be 3 hours (1 + 2 = 3) at
an estimate cost of $182 ($100 + $82 =
$182). For all 14,688 LTC facilities, the
total estimated burden would be 44,064
hours (14,688 LTCFs × 3 hours = 44,064)
at a cost of $2,673,216 ($182 × 14,688
LTCFs = 2,673,216).
The total estimated burden for the
ICRs in part 483 is 910,656 (279,072 +
587,520 + 44,064) hours at a cost of
$72,779,040 ($24,440,832 + $45,664,992
+ 2,673,216).
TABLE 6: Total Burden for Part 483 ICRs
§ 483.35
Policies and Procedures
Nursing Services
§ 483.71
Facility assessmentRecruitment and Retention
Plan
§ 483.71
Soliciting input
Totals
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The burden will be included in this
revised Information Collection Request
under the OMB control number 0938–
1363; Expiration date: April 30, 2026.
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Burden
Hours
Per
LTCF
19
Cost
Estimate
Per
LTCF
$1,664
Burden
Hours
For all
LTCFs
279,072
Cost
Estimate
For all
LTCFs
$24,440,832
40
$3,109
587,520
$45,664,992
3
$182
44,064
$2,673,216
62
$4,955
910,656
$72,779,040
C. ICR Related to Medicaid Institutional
Payment Transparency
1. Wage Estimates
To derive average costs, we used data
from the U.S. Bureau of Labor Statistics
(BLS) May 2022 National Occupational
Employment and Wage Estimates for all
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salary estimates (https://www.bls.gov/
oes/current/oes_nat.htm). In this regard,
table 7 presents BLS’s mean hourly
wage, our estimated cost of fringe
benefits and other indirect costs
(calculated at 100 percent of salary), and
our adjusted hourly wage.
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LTC Requirements
Section
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Federal Register / Vol. 89, No. 92 / Friday, May 10, 2024 / Rules and Regulations
Table 7: National Occupational Employment and Wage Estimates
OCCUPATION
CODE
MEAN
HOURLY
WAGE($/HR)
11-3012
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Administrative Services
Manager
Chief Executive
Compensation, Benefits, and
Job Analyst
Computer Programmer
General and Operations
Manager
Management Analyst
Training and Development
Specialist
For States and the private sector, our
employee hourly wage estimates have
been adjusted by a factor of 100 percent.
This is necessarily a rough adjustment,
both because fringe benefits and other
indirect costs vary significantly across
employers, and because methods of
estimating these costs vary widely
across studies. Nonetheless, we believe
that doubling the hourly wage to
estimate total cost is a reasonably
accurate estimation method.
To estimate the financial burden on
States related to the finalized Medicaid
Institutional Payment Transparency
Reporting provisions (discussed below),
it was important to consider the Federal
Government’s contribution to the cost of
administering the Medicaid program.
The Federal Government provides
funding based on a Federal medical
assistance percentage (FMAP) that is
established for each State, based on the
per capita income in the State as
compared to the national average.
FMAPs range from a minimum of 50
percent in States with higher per capita
incomes to a maximum of 83 percent in
States with lower per capita incomes.
For Medicaid, all States receive a 50
percent FMAP for administration. States
also receive higher Federal matching
rates for certain systems improvements,
redesign, or operations. Taking into
account the Federal contribution to the
costs of administering the Medicaid
programs for purposes of estimating
State burden with respect to collection
of information, we elected to use the
higher end estimate that the States
would contribute 50 percent of the
costs, even though the burden would
likely be smaller given that some States
contributions will be less than 50
percent. We requested comment on our
estimated number of burden hours for
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ADJUSTED
HOURLY
WAGE($/HR)
55.59
FRINGE
BENEFITS AND
OVERHEAD
($/HR)
55.59
11-1011
13-1141
118.48
36.50
118.48
36.50
236.96
73.00
15-1251
11-1021
49.42
59.07
49.42
59.07
98.84
118.14
13-1111
13-1151
50.32
33.59
50.32
33.59
100.64
67.18
the proposal for each of the activities
and total annual burden and cost for
each facility. We did not receive specific
comments on these burden estimates.
3. Information Collection Requirements
(ICRs)
The following finalized changes will
be submitted to OMB for their approval
when our survey instrument has been
developed; we are using feedback
received during public comment on the
proposed rule to inform the
development of the survey instrument.
The survey instrument and burden will
be made available to the public for their
review under the standard non-rule PRA
process which includes the publication
of 60- and 30-day Federal Register
notices. In the meantime, we are setting
out our preliminary burden figures (see
below) as a means of estimating the
impact of this finalized rule. The
availability of the survey instrument
and more definitive burden estimates
will be announced in both Federal
Register notices. The CMS ID number
for that collection of information request
is CMS–10851 (OMB control number
0938–TBD). Since this would be a new
collection of information request, the
OMB control number has yet to be
determined (TBD) but will be issued by
OMB upon their approval of the new
information collection request. Note that
we intend that the following finalized
changes associated with § 442.43(b), (c),
and (d), discussed later in this section,
will be submitted to OMB for review as
a single PRA package under control
number 0938–TBD (CMS–10851).
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111.18
a. State and Provider Burden Under
§ 442.43(b) and (c)—Payment
Transparency Reporting
As discussed in section III. of this
final rule, under our Medicaid authority
at sections 1902(a)(6) and 1902(a)(30)(A)
of the Act with respect to FFS delivery
systems, and sections 1902(a)(4) and
1932(c) of the Act with respect to
managed care delivery systems, we
proposed and are finalizing new
reporting requirements at § 442.43(b) for
States to report annually on the percent
of payments for Medicaid-covered
services delivered by nursing facilities
and ICFs/IID that are spent on
compensation for direct care workers
and support staff. (Our definitions of
who is included in direct care workers
and support staff, finalized at
§ 442.43(a)(2) and (3), respectively, are
discussed in the preamble in section III.
of this rule.) The intent of this
requirement is for States to report
separately, at the facility level, on the
percent of payments for nursing facility
services that are spent on compensation
to direct care workers, the percent of
payments for nursing facility services
that are spent on compensation to
support staff, the percent of payments
for ICF/IID services that are spent on
compensation to direct care workers,
and the percent of payments for ICF/IID
services that are spent on compensation
to support staff. We proposed and are
finalizing a cross-reference to the
requirements in § 438.72 to specify that
States that include nursing facility and
ICF/IID services in their contracts with
managed care organizations (MCOs) or
prepaid inpatient health plans (PIHPs)
would have to comply with the
requirements at § 442.43(b). Where they
appear, references to the requirements at
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§ 442.43(b) apply to both FFS and
managed care delivery systems.
We considered, but are not finalizing,
additional requirements that States
report on median hourly compensation
for direct care workers and median
hourly compensation for support staff,
in addition to the percent of Medicaid
payments going to overall compensation
for these workers. We considered, but
are not finalizing, adding at § 442.43(c)
a provision requiring that States make
publicly available information about the
underlying FFS payment rates
themselves for nursing facility and ICF/
IID services. We note that our cost
estimates in the proposed rule included
estimated costs for both of these
additional reporting requirements and
are no longer reflected in this ICR. We
also note that we are finalizing an
additional requirement (discussed in
section III. of this final rule) that will
allow providers to exclude certain costs
(such as certain costs related to training,
travel, and PPE) from their Medicaid
payments when calculating the percent
of Medicaid payments spent on
compensation to direct care workers and
support staff. We anticipate that this
may lead to a slight increase in the
State’s burden to develop guidance for
providers on how to apply these
excluded costs in facility settings and
have adjusted the ICR accordingly.
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(1) State Institutional Payment
Transparency Reporting Requirements
and Burden
The burden associated with the
reporting requirements finalized in this
rule would affect all 51 States
(including Washington, DC). While not
all States cover ICF/IID services
(because it is an optional Medicaid
benefit), all States must offer Medicaid
nursing facility services (because it is a
mandatory Medicaid benefit). Thus, we
anticipate that all 51 States (including
Washington, DC) would participate in
the reporting requirements proposed at
§ 442.43(b). Additionally, three
territories (Guam, Puerto Rico, and the
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U.S. Virgin Islands) are required to
include nursing facility services in their
State plans, and thus are included in
these calculations as well.94 While we
included these territories in our cost
estimates, we continue to refer to the
affected entities collectively as ‘‘States’’.
We estimated both a one-time and
ongoing burden to States to implement
these requirements at the State level.
One-Time Reporting Requirements and
Burden (§ 442.43(b)): States
Under finalized § 442.43(b) and (c),
we anticipate as a one-time burden that
States, through their designated State
Medicaid agency, would have to: (1)
draft new policy describing the Statespecific reporting process (one-time); (2)
update any related provider manuals
and other policy guidance, including
guidance on excluded costs (one-time);
(3) build, design, and operationalize an
electronic system for data collection and
aggregation (one-time); and (4) develop
and conduct an initial training for
providers on the reporting requirement
and State-developed reporting system
(one-time). We note that we are not
requiring that States update their
Medicaid State plans as part of this
reporting requirement, and thus we did
not estimate a burden associated with
State plan amendments.
With regard to this one-time burden
for States, we estimate it would take: 40
hours at $111.18/hr. for an
administrative services manager to draft
new policy describing the State-specific
reporting process; 40 hours at $100.64/
hr. for a management analyst to update
any related provider manuals and other
policy guidance; 40 hours at $98.84/hr.
for a computer programmer to build,
design, and operationalize an electronic
system for data collection on the percent
94 Note that due to waiver under section 1902(j)
of the Social Security Act, American Samoa and the
Commonwealth of the Northern Marianas Islands
are not required to include nursing facility services
in their State plans and thus are not included in
these estimates. Additionally, no territory currently
includes the optional ICF/IID benefit in their State
plan.
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40941
of Medicaid payments going to
compensation; 30 hours at $67.18/hr. for
a training and development specialist to
develop and conduct training for
providers on the reporting requirement
and system; 3 hours at $118.14/hr. for
a general and operations manager to
review and approve policy updates,
provider agreement updates, and
training materials; and 1 hour at
$236.96/hr. for a chief executive to
review and approve all operations
associated with this requirement.
In addition to these activities outlined
above, States may also have to update
managed care contracts to reflect the
new reporting requirement and provide
managed care-specific guidance on the
reporting requirement. Recent data
indicates that 24 States provide at least
some long-term services through a
managed care delivery system.95 For the
managed care-specific burden, we
estimate 10 hours at $111.18/hr. for an
administrative services manager to draft
updates to managed care plan (that is,
MCO and/or PIHP) contracts. (We
anticipate that all other State activities
associated with managed care plans
would be reflected in the activities
described previously in this section.)
In aggregate, we estimate a one-time
burden of 6,926 hours [(164 hours × 54
States) + (10 × 24 States)]. We estimate
a cost of $811,792 (54 States × [(40 hr.
× $111.18) + (40 hr. × $100.64) + (25 hr.
× $98.84) + (30 hr. × $67.18) + (3 hr. ×
$118.14) + (1 hr. × $236.96)]), with an
additional $26,683 for managed carerelated costs (24 States × [10 hr. ×
$111.18]). The total cost is estimated at
$838,475 ($811,792 + $26,683). Taking
into account the Federal contribution to
Medicaid administration, the estimated
State share of the cost would be
$419,237 ($838,475 × 0.50).
BILLING CODE 4120–01–P
95 Data taken from Centers for Medicare &
Medicaid Services, ‘‘Managed Long Term Services
and Supports (MLTSS) Enrollees,’’ available at
https://data.medicaid.gov/dataset/5394bcab-c7485e4b-af07-b5bf77ed3aa3.
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Requirement
No.
Respondents
Total
Responses
Frequency
Total
Time
(hr.)
2,160
Wage
($/hr.)
Total Cost
($)
Once
Time per
Response
(hr.)
40
Draft new
policy
describing the
State-specific
reporting
process
Update any
related
provider
manuals and
other policy
guidance
Build, design,
and
operationalize
an electronic
system for
data
collection,
aggregate,
and stratify
reporting
Develop and
conduct
training for
providers on
the reporting
requirement
and system
Review and
approve
policy
updates and
training
materials
Review and
approve all
operations
associated
with this
requirement
Draft contract
modifications
for managed
care plans
Total
54
54
54
111.18
240,149
120,074
54
Once
40
2,160
100.64
217,382
108,691
54
54
Once
40
2,160
98.84
213,494
106,747
54
54
Once
30
1.62-
67.18
108,832
54,416
54
54
Once
3
162
118.14
19,139
9,569
54
54
Once
1
54
236.96
12,796
6,398
24
24
Once
10
240
111.18
26,683
13,342
Varies
348
Once
164
6,936
Varies
838,475
419,237
BILLING CODE 4120–01–C
Ongoing Reporting Requirements and
Burden (§ 442.43(b)): States
Under finalized § 442.43(b), we
estimate as ongoing burdens that States
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Jkt 262001
would: (1) notify and train nursing
facility and ICF/IID providers about the
annual reporting requirement, including
the State-level process for collecting
data (ongoing); (2) collect information
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Fmt 4701
Sfmt 4700
State Share
($)
from providers annually (ongoing); (3)
aggregate or stratify data as needed
(ongoing); (4) derive percentages for
compensation (ongoing); and (5)
E:\FR\FM\10MYR3.SGM
10MYR3
ER10MY24.089</GPH>
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Table 8: Summary of One-Time Burden for States for the Medicaid Institutional Payment
Transparency Reporting Requirements at § 442.43(b)
40943
Federal Register / Vol. 89, No. 92 / Friday, May 10, 2024 / Rules and Regulations
develop a report for CMS on an annual
basis (ongoing).
With regard to the ongoing burden,
we estimate it would take: 8 hours at
$67.18/hr. for a training and
development specialist to notify and
train providers about annual reporting
requirement; 2 hours at $100.64 for a
management analyst to review and make
any needed updates to guidance for
nursing facility and ICF/IID services; 6
hours at $98.84/hr. for a computer
programmer to collect information from
providers, aggregate data as needed,
derive percentages for compensation,
and develop a report for the State; 2
hours at $118.14/hr. by a general and
operations manager to review, verify,
and submit the report to CMS; and 1
hour at $236.96/hr. for a chief executive
to review and approve all operations
associated with this requirement.
In aggregate, we estimate an ongoing
burden of 1,026 hours (19 hours × 54
States) at a cost of $97,470 (54 States ×
[(8 hr. × $67.18) + (2 hr. × $100.64) +
(6 hr. × $98.84) + (2 hr. × $118.14) + (1
hr. × $236.96)]. Taking into account the
Federal contribution to Medicaid
administration, the estimated State
share of this cost would be $48,735
($97,470 × 0.50) per year.
Requirement
No.
Respondents
Total
Responses
Frequency
Total
Time
(hr.)
416
Wage
($/hr.)
Annually
Time per
Response
(hr.)
8
Notify and train
providers about
annual reporting
requirement
Review and make
any needed updates
to nursing facility
and ICF/IID
provider guidance
and manuals
Collect information
from providers;
aggregate data as
required; derive an
overall percentage
for compensation;
and develop report
for State
Review, verify, and
submit report to
CMS
Review and
approve all
operations
associated with this
requirement
Total
54
54
54
54
Annually
2
54
54
Annually
54
54
54
54
khammond on DSKJM1Z7X2PROD with RULES3
(2) Nursing Facility and ICF/IID
Institutional Payment Transparency
Reporting Requirements and Burden
The burden associated with this final
rule would affect nursing facility and
ICF/IID providers in both FFS and
managed care systems. We estimate both
a one-time and ongoing burden to
implement the reporting requirement
finalized at § 442.43(b).
To estimate the number of nursing
facility and ICF/IID providers that are
being impacted by this rule, we used
data from the CMS Quality Certification
VerDate Sep<11>2014
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Jkt 262001
67.18
Total
Cost
($)
29,022
State
Share
($)
14,511
108
100.64
10,869
5,435
6
312
98.84
32,024
16,012
Annually
2
104
118.14
12,759
6,380
54
Annually
1
52
236.96
12,796
6,398
54
Annually
Varies
1,026
Varies
97,470
48,735
and Oversight Reports (QCOR) system
(qcor.cms.gov) to identify the total
number of Medicaid-certified nursing
facilities and ICFs/IID in all States
(including Washington, DC) and the
three territories that are required to
include nursing facility services in their
State plan. Data from QCOR indicates
that in FY 2022, there were 14,194
freestanding Medicaid-certified nursing
facilities (including facilities dually
certified for both Medicare and
Medicaid, and Medicaid-only facilities).
Additionally, in FY 2022, there were
5,713 ICFs/IID. In total, we estimate
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Sfmt 4700
19,907 Medicaid-certified nursing
facilities and ICFs/IID are impacted by
this finalized reporting requirement and
may need to provide data to the State on
what percentage of their Medicaid
reimbursements for nursing facility and
ICF/IID services went to direct care
worker and support staff compensation.
Under finalized § 442.43(b), we
anticipate that nursing facilities and
ICFs/IID would need to: (1) learn the
State-specific reporting policies and
process (one-time); (2) calculate
compensation for each direct care
worker and support staff if they do not
E:\FR\FM\10MYR3.SGM
10MYR3
ER10MY24.090</GPH>
Table 9: Summary of Ongoing Burden for States for the Medicaid Institutional Payment
Transparency Reporting Requirements at § 442.43(b)
40944
Federal Register / Vol. 89, No. 92 / Friday, May 10, 2024 / Rules and Regulations
already have that information readily
available (one-time); and (3) build,
design and operationalize an internal
system for developing the report for the
State (one-time).
One-Time Reporting Requirements and
Burden (§ 442.43(b)): Nursing Facility
and ICF/IID Providers
With regard to the one-time burden
for providers, we estimate it would take:
10 hours at $73.00/hr. for a
compensation, benefits, and job analysis
specialist to learn the State-specific
reporting policy and calculate
compensation for each direct care
worker and support staff; 10 hours at
$98.84/hr. for a computer programmer
to build, design, and operationalize an
internal system for developing the
report for the State; and 1 hour at
$118.14/hr. for a general and operations
manager to review and approve the
reporting system. In aggregate, we
estimate a one-time burden of 418,047
hours (19,907 facilities × 21 hours) at a
cost of $36,560,002 (19,907 providers ×
[(10 hr. × $73.00) + (10 hr. × $98.84) +
(1 hr. × $118.14)].
Table 10: Summary of One-Time Burden for Nursing Facilities and ICFs/llD for the
Medicaid Institutional Payment Transparency Reporting Requirements at § 442.43(b)
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Learn Statespecific
reporting
policy;
calculate
compensation
for each
direct care
worker and
support staff
Build, design,
and
operationalize
an internal
system for
developing
the report for
the State
Review and
approve
reporting
system
Total
No.
Respondent
s
19,907
Total
Response
s
19,907
Frequenc
y
Total
Time
(hr.)
199,07
0
Wage
($/hr.)
Total Cost
($)
Once
Time per
Respons
e (hr.)
IO
73.00
14,532,11
0
19,907
19,907
Once
IO
199,07
0
98.84
19,676,07
9
n/a
19,907
19,907
Once
1
19,907
118.1
4
2,351,813
n/a
19,907
59,721
Once
Varies
418,04
7
varies
36,560,00
2
n/a
Ongoing Reporting Requirements and
Burden (§ 442.43(b)): Nursing Facility
and ICF/IID Providers
With regard to the ongoing burden,
we anticipate nursing facilities and
ICFs/IID will have to: (1) update
compensation calculations to account
for on-going staffing changes among
direct care workers and support staff (in
other words, ensure their system
includes newly hired direct care
workers or support staff and takes into
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20:37 May 09, 2024
Jkt 262001
account staff departures); (2) calculate
the aggregated compensation of direct
care workers and support staff as a
percentage of their annual Medicaid
claims (ongoing); and (3) report the
information to the State annually
(ongoing).
We estimate it would take 8 hours at
$73.00/hr. for a compensation, benefits,
and job analysis specialist to update
compensation calculations to account
for staffing changes; 2 hours at $98.84/
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Fmt 4701
Sfmt 4700
State
Share
($)
n/a
hr. for a computer programmer to
calculate compensation, aggregate data,
and report to the State as required; and
1 hour at $118.14/hr. for a general and
operations manager to review, approve,
and submit the report to the State. In
aggregate, we estimate an on-going
burden of 218,977 hours (19,907
providers × 11 hours) at a cost of
$17,912,717 (19,907 facilities × [(8 hr. ×
$73.00) + (2 hr. × $98.84) + (1 hr. ×
$118.14)].
E:\FR\FM\10MYR3.SGM
10MYR3
ER10MY24.091</GPH>
Requirement
Federal Register / Vol. 89, No. 92 / Friday, May 10, 2024 / Rules and Regulations
40945
Table 11: Summary of Ongoing Burden for Nursing Facility and ICFs/llD for the
Medicaid Institutional Payment Transparency Reporting Requirements at § 442.43(b)
No.
Respondents
Total
Responses
Frequency
Total
Time
(hr.)
159,256
Wage
($/hr.)
Total Cost
($)
Annually
Time per
Response
(hr.)
8
73.00
11,625,688
State
Share
($)
n/a
Account for staffmg
changes among
employees and
contracted employees
Calculate
compensation,
aggregate data, and
report to the State
Review, approve,
submit report to the
State
Total
19,907
19,907
19,907
19,907
Annually
2
39,814
98.84
3,935,216
n/a
19,907
19,907
Annually
1
19,907
118.14
2,351,813
n/a
19,907
59,721
Annually
Varies
218,977
vanes
17,912,717
n/a
b. State Website Posting Requirements
and Burden (§ 442.43(d))
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At § 442.43(d), we are finalizing the
requirement for States to operate a
website that meets the availability and
accessibility requirements at 42 CFR
435.905(b) and that provides the results
of the finalized reporting requirements
in § 442.43(b). We also are finalizing at
§ 442.43(d) that States must verify, no
less than quarterly, the accurate
function of the website and the
timeliness of the information and links.
As noted previously, we anticipate
that this provision will affect all 51
States (including Washington, DC) and
the territories required to have nursing
facility services in their State plans
which we refer to collectively as
‘‘States.’’ We estimate both a one-time
and ongoing burden to implement these
requirements at the State level, which
VerDate Sep<11>2014
20:37 May 09, 2024
Jkt 262001
would be the same regardless of
whether the State offers nursing facility
and ICF/IID services through FFS or
managed care systems. In developing
our burden estimate, we assumed that
States would provide the data and
information that States are required to
report under newly proposed
§ 442.43(d) by adding to an existing
website, rather than developing an
entirely new website to meet this
requirement. We note that we are not
requiring that States update their
Medicaid State plans as part of this
reporting requirement and are not
estimating a burden associated with
State plan amendments.
One Time Website Posting
Requirements and Burden (§ 442.43(d)):
States
With regard to the one-time burden,
based on the website requirements, we
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Fmt 4701
Sfmt 4700
estimate it would take: 10 hours at
$111.18/hr. for an administrative
services manager to determine the
content of the website; 30 hours at
$98.84/hr. for a computer programmer
to develop the website; 1 hour at
$118.14/hr. for a general and operations
manager to review and approve the
website; and 1 hour at $236.96/hr. for a
chief executive to review and approve
the website. In aggregate, we estimate a
one-time burden of 2,268 hours (54
States × 42 hours) at a cost of $239,333
(54 States × [(10 hr. × $111.18) + (30 hr.
× $98.84) + (1 hr. × $118.14) + (1 hr. ×
$236.96)]. Taking into account the
Federal contribution to Medicaid
administration, the estimated State
share of this cost would be $119,667
($239,333 × 0.50) per year.
E:\FR\FM\10MYR3.SGM
10MYR3
ER10MY24.092</GPH>
Requirement
40946
Federal Register / Vol. 89, No. 92 / Friday, May 10, 2024 / Rules and Regulations
Table 12: Summary of the One-Time Burden for States for the Website Posting
Requirements at § 442.43(1)
Requirement
No.
Respondents
Total
Responses
Frequency
Total
Time
(hr.)
540
Wage
($/hr.)
Total
Cost
Once
Time per
Response
(hr.)
10
111.18
60,037
State
Share
($)/year
30,019
Determine
content of
website
Develop website
Review and
approve the
website at the
management
level
Review and
approve the
website at the
executive level
Total
54
54
54
54
54
54
Once
Once
30
1
1,620
54
98.84
118.14
160,121
6,380
80,060
3,190
54
54
Once
1
54
236.96
12,796
6,398
54
216
Once
Varies
2,268
Varies
239,333
119,667
Ongoing Website Posting Requirements
and Burden (§ 442.43(d)): States
With regard to the States’ ongoing
burden related to the website
requirement, per quarter we estimate it
would take: 2 hours at $111.18/hr. for
an administrative services manager to
provide any updated data and
information for posting and to verify the
accuracy of the website; 8 hours at
$98.84/hr. for a computer programmer
to make any needed updates to the
website; 1 hour at $118.14/hr. for a
general and operations manager to
review and approve the website; and 1
hour at $236.96/hr. for a chief executive
to review and approve the website. In
aggregate, we estimate an ongoing
($)
annual burden of 2,592 hours (12 hours
× 54 States × 4 quarters) at a cost of
$295,527 (54 States × 4 quarters × [(2 hr.
× $111.18) + (8 hr. × $98.84) + (1 hr. ×
$118.14) + (1 hr. × $236.96)]. Taking
into account the Federal contribution to
Medicaid administration, the estimated
State share of this cost would be
$147,764 ($295,527 × 0.50) per year.
Table 13: Summary of the Ongoing Burden for States for the Website Posting
Requirements at § 442.43(1)
VerDate Sep<11>2014
20:37 May 09, 2024
Total
Responses
Frequency
Total
Time
(hr.)
432
Wage
($/hr.)
Total
Cost
Quarterly
Time per
Response
(hr.)
2
54
216
111.18
48,030
24,015
54
54
216
216
Quarterly
Quarterly
8
1
1,728
216
98.84
118.14
170,796
25,518
85,398
12,759
54
216
Quarterly
1
216
236.96
51,183
25,592
54
864
Quarterly
Varies
2,592
Varies
295,527
147,763
Jkt 262001
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Frm 00072
Fmt 4701
Sfmt 4725
($)
E:\FR\FM\10MYR3.SGM
10MYR3
State
Share
($)
ER10MY24.094</GPH>
Provide updated
data and
information for
posting and
verify the
accuracy of the
website
Update website
Review and
approve website
at the
management
level
Review and
approve website
at the executive
level
Total
No.
Respondents
ER10MY24.093</GPH>
khammond on DSKJM1Z7X2PROD with RULES3
Requirement
40947
Federal Register / Vol. 89, No. 92 / Friday, May 10, 2024 / Rules and Regulations
4. Burden Estimate Summary
BILLING CODE 4120–01–P
Regulation
Section(s)/ICR
Provision
Number of
Respondents
Number
of
Responses
Time per
Response
(hrs.)
Total
Time
(hr.)
Hourly
Labor
Rate
($/hr.)
Total
Labor Cost
($)
State
Share
($)
Total
Beneficiary
Cost($)
§ 442.43(b)
One-Time
Burden to
States (Table 8)
(Payment
Transparency
Reporting)
§ 442.43(b)
Ongoing
Burden to
States (Table 9)
(Payment
Transparency
ReportingAnnual)
§ 442.43(b)
One-Time
Burden to
Providers
(Table 10)
(Payment
Transparency
Reporting)
§ 442.43(b)
Ongoing
Burden to
Providers
(Table 11)
(Payment
Transparency
ReportingAnnual)
§ 442.43(f)
One-Time
Burden to
States (Table
12) (Website
Posting)
§ 442.43(f)
Ongoing
Burden to
States (Table
13) (Website
Posting Quarterly)
TOTAL
Varies
348
Varies
6,936
Varies
838,475
419,237
0
54
270
Varies
1,026
Varies
97,470
48,735
0
19,907
59,721
Varies
418,047
Varies
36,560,002
n/a
0
19,907
59,721
Varies
218,977
Varies
17,912,717
n/a
0
54
216
Varies
2,268
Varies
239,333
119,667
0
54
864
Varies
2,592
Varies
295,527
147,764
0
Varies
121,140
Varies
649,306
Varies
55,943,524
735,403
0
VerDate Sep<11>2014
20:37 May 09, 2024
Jkt 262001
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Frm 00073
Fmt 4701
Sfmt 4725
E:\FR\FM\10MYR3.SGM
10MYR3
ER10MY24.095</GPH>
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Table 14: Summary of Annual Burden Estimates
40948
Federal Register / Vol. 89, No. 92 / Friday, May 10, 2024 / Rules and Regulations
VI. Regulatory Impact Analysis
A. Statement of Need
khammond on DSKJM1Z7X2PROD with RULES3
1. Minimum Nurse Staffing
With respect to the requirements for
minimum nurse staffing in LTC
facilities, sections 1819 and 1919 of the
Act authorize the Secretary to issue
requirements for participation in
Medicare and Medicaid, including such
regulations as may be necessary to
protect the health and safety of residents
(sections 1819(d)(4)(B) and
1919(d)(4)(B) of the Act). Such
regulations are codified in the
implementing regulations at 42 CFR part
483, subpart B.
Approximately 1.2 million Americans
are residents in LTC facilities each day
with Medicare and Medicaid serving as
the payor for most residents.96 As we
discussed in detail in detail in sections
II. and III, a large body of quantitative
and qualitative research suggests that
adequate nurse staffing is vital for
ensuring residents’ health and safety.
More specifically, there is a positive
association between the number of
hours of care that a resident receives
each day and resident health and
safety.97 98 99 Research also suggests that
there is a relationship between
inadequate staffing and nursing staff
burnout, which can lead to high
employee turnover.100 High employee
turnover, in turn, can lead to lower
continuity of resident care.
During our regular interactions with
State Medicaid agencies, provider
groups, and beneficiary advocates, we
have observed that all these interested
parties routinely express the concern
that chronic understaffing in LTC
96 https://data.cms.gov/summary-statistics-onuse-and-payments/medicare-service-type-reports/
cms-program-statistics-medicare-skilled-nursingfacility.
97 Ochieng, N., Chidambaram, P., Musumeci, M.
Nursing Facility Staffing Shortages During the
COVID–19 Pandemic. Apr 04, 2022. Kaiser Family
Foundation. Accessed at https://www.kff.org/
coronavirus-covid-19/issue-brief/nursing-facilitystaffing-shortages-during-the-covid-19-pandemic/.
98 Harrington, C., Carrillo, H., Garfield, R.,
Squires, E. Nursing Facilities, Staffing, Residents
and Facility Deficiencies, 2009 Through 2016. Apr
03, 2018. Kaiser Family Foundation. Accessed at
https://www.kff.org/report-section/nursingfacilities-staffing-residents-and-facility-deficiencies2009-through-2016-staffing-levels/.
99 Min A, Hong HC. Effect of nurse staffing on
rehospitalizations and emergency department visits
among short-stay nursing home residents: A Crosssectional study using the U.S. Nursing Home
Compare database. Geriatr Nurs. 2019 MarApr;40(2):160–165. doi: 10.1016/
j.gerinurse.2018.09.010. Epub 2018 Oct 4. PMID:
30292528.
100 Kelly LA, Gee PM, Butler RJ. Impact of nurse
burnout on organizational and position turnover.
Nurs Outlook. 2021 Jan-Feb;69(1):96–102. doi:
10.1016/j.outlook.2020.06.008. Epub 2020 Oct 4.
PMID: 33023759; PMCID: PMC7532952.
VerDate Sep<11>2014
20:37 May 09, 2024
Jkt 262001
facilities is making it difficult for
residents to receive high quality care.
Low quality care also has a negative
impact on the Medicare and Medicaid
programs, leading to higher spending
due to more hospitalizations and
unplanned Emergency Department
visits.101 102 103 The available evidence
suggests that various types of
requirements for LTC facility staff could
increase the quality of care in LTC
facilities. We also recognize, however,
that staffing in the long-term care sector
is still recovering from the COVID–19
pandemic that saw a large number of
employees leave the sector, leading to
concerns about resident access to care.
In response to these concerns, and after
evaluating a wide range of research and
stakeholder feedback, we are finalizing
a 24/7 on-site RN requirement,
minimum RN and NA HPRD
requirements, and a total nurse staffing
requirement or 3.48 HPRD, all of which
aim to increase resident safety and
quality of care while preserving resident
access to care.
Specifically, we are requiring that
LTC facilities provide RN coverage
onsite 24 hours per day, 7 days a week
(24/7 RN). In addition, we are requiring
that they provide a minimum of 0.55 RN
and 2.45 NA HPRD, and 3.48 total nurse
staff HPRD. While the 0.55 RN HPRD,
2.45 NA HPRD, and 3.48 total nurse
staff HPRD standards were developed
using case-mix adjusted data sources,
the standards themselves will be
implemented and enforced independent
of a facility’s case-mix. In other words,
facilities must meet the 0.55 RN, 2.45
NA, and 3.48 total nurse staff HPRD
standards, regardless of the individual
facility’s patient case-mix. Requiring 24/
7 RN and a minimum number of hours
of care for each resident will help
protect resident health and safety by
ensuring that all facilities provide a
minimal level of staff care to address
residents’ health and safety needs.
These standards reflect only the
101 Ochieng, N., Chidambaram, P., Musumeci, M.
Nursing Facility Staffing Shortages During the
COVID–19 Pandemic. Apr 04, 2022. Kaiser Family
Foundation. Accessed at https://www.kff.org/
coronavirus-covid-19/issue-brief/nursing-facilitystaffing-shortages-during-the-covid-19-pandemic/.
102 Harrington, C., Carrillo, H., Garfield, R.,
Squires, E. Nursing Facilities, Staffing, Residents
and Facility Deficiencies, 2009 Through 2016. Apr
03, 2018. Kaiser Family Foundation. Accessed at
https://www.kff.org/report-section/nursingfacilities-staffing-residents-and-facility-deficiencies2009-through-2016-staffing-levels/.
103 Min A, Hong HC. Effect of nurse staffing on
rehospitalizations and emergency department visits
among short-stay nursing home residents: A Crosssectional study using the U.S. Nursing Home
Compare database. Geriatr Nurs. 2019 MarApr;40(2):160–165. doi: 10.1016/
j.gerinurse.2018.09.010. Epub 2018 Oct 4. PMID:
30292528.
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minimum level of staffing required and
all LTC facilities must provide adequate
staffing to meet their specific
population’s needs based on their
facility assessments. In many cases,
facilities will need higher levels of
staffing as a result.
2. Medicaid Institutional Payment
Transparency Reporting
In response to concerns about the
chronic understaffing and low wages for
the institutional workforce (discussed in
detail in our proposed rule at 88 FR
61398 and 61399), we proposed new
Federal reporting requirements that are
intended to promote public
transparency. States have a statutory
obligation under section 1902(a)(30)(A)
of the Act and the quality requirements
in section 1932(c) of the Act for services
furnished through managed care
organizations (MCOs) (as well as for
prepaid inpatient health plans (PIHPs),
under our authority at section
1902(a)(4)), to make Medicaid payments
that are sufficient to enlist enough
providers so that high-quality LTSS are
available to the beneficiaries who want
and require such care. We also relied on
our authority under section 1902(a)(6) of
the Act, which requires State Medicaid
agencies to make such reports, in such
form and containing such information,
as the Secretary may from time to time
require, and to comply with such
provisions as the Secretary may from
time to time find necessary to assure the
correctness and verification of such
reports.
As discussed in section III. of this
final rule, we are finalizing (with some
modifications) our proposal to require
that State Medicaid agencies report
annually, at the facility level, on the
portion of payments to nursing facility
and ICF/IID services that are spent on
compensation for the direct care and
support staff workforce.104 We also
proposed, and are finalizing, that States
make this information available to the
public by posting the information on a
website. As discussed in the proposed
rule at 88 FR 61399, we developed the
requirement to focus on compensation
because many direct care workers and
support staff earn low wages and receive
limited benefits.105 Evidence suggests
that there is a connection between
wages and high rates of turnover among
104 Throughout this discussion, we use the term
‘‘States’’ to include all States, Washington, DC, and
any territories that include nursing facility services
or ICF/IID services in their State plan.
105 Campbell, S., A. Del Rio Drake, R. Espinoza,
K. Scales. 2021. Caring for the future: The power
and potential of America’s direct care workforce.
Bronx, NY: PHI https://phinational.org/wp-content/
uploads/2021/01/Caring-for-the-Future-2021PHI.pdf.
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some workers in the institutional
workforce.106 To develop relevant
policies to support high quality care for
Medicaid beneficiaries, we first need
clear, consistent data from States and
facilities about the current percent of
Medicaid payments going to the
compensation of direct care workers and
support staff. Data regarding the percent
of Medicaid payments going to
compensation of direct care workers and
support staff are not currently being
reported to CMS.
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B. Overall Impacts
We have examined the impacts of this
final rule as required by Executive
Order 12866 on Regulatory Planning
and Review (September 30, 1993),
Executive Order 13563 on Improving
Regulation and Regulatory Review
(January 18, 2011), the Regulatory
Flexibility Act (RFA, September 19,
1980, Public Law 96–354), section
1102(b) of the Act, section 202 of the
Unfunded Mandates Reform Act of 1995
(UMRA, March 22, 1995; Pub. L. 104–
4), and Executive Order 13132 on
Federalism (August 4, 1999).
Executive Orders 12866 and 13563
direct agencies to assess all costs and
benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety
effects, distributive impacts, and
equity). Executive Order 14094
(Modernizing Regulatory Review)
amends section 3(f)(1) of Executive
Order 12866 (Regulatory Planning and
Review). The amended section 3(f) of
Executive Order 12866 defines a
‘‘significant regulatory action’’ as an
action that is likely to result in a rule:
(1) having an annual effect on the
economy of $200 million or more in any
1 year (adjusted every 3 years by the
Administrator of the Office of
Information and Regulatory Affairs
(OIRA) for changes in gross domestic
product), or adversely affect in a
material way the economy, a sector of
the economy, productivity, competition,
jobs, the environment, public health or
safety, or State, local, territorial, or
Tribal governments or communities; (2)
creating a serious inconsistency or
otherwise interfering with an action
taken or planned by another agency; (3)
materially altering the budgetary
impacts of entitlement grants, user fees,
or loan programs or the rights and
106 Sharma, H. and Liu, X. Association between
wages and nursing staff turnover in Iowa. Innov
Aging. 2022; 6(4): igac004. Published online 2022
Feb 5. doi: 10.1093/geroni/igac004.
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obligations of recipients thereof; or (4)
raising legal or policy issues for which
centralized review would meaningfully
further the President’s priorities or the
principles set forth in this Executive
order, as specifically authorized in a
timely manner by the Administrator of
OIRA in each case.
A regulatory impact analysis (RIA)
must be prepared for regulatory actions
with significant effects as per section
3(f)(1) ($200 million or more in any 1
year). Accordingly, we have prepared a
regulatory impact analysis that to the
best of our ability presents the costs and
benefits of the rulemaking.
For this final rule, we have calculated
the annual cost of the minimum staffing
requirements in table 22 based on hours
per resident day in CY 2021 dollars,
assuming the implementation and
enforcement of these hours per resident
day requirements as being applied
independent of a facility’s case-mix. We
estimate that the aggregate impact of the
staffing-related provisions in this rule,
which includes a phased-in
implementation of the requirement for
24 hours per day, 7 days per week RN
onsite coverage, the 0.55 RN and 2.45
NA minimum HPRD requirements, and
the 3.48 HPRD total nurse staff
requirement will result in an estimated
cost of approximately $53 million in
year 1, $1.43 billion in year 2, $4.38
billion in year 3, with costs increasing
to $5.76 billion by year 10. We estimate
the total cost over 10 years will be $43.0
billion with an average annual cost of
$4.30 billion.
There is uncertainty about the degree
to which LTC facilities would bear the
cost of meeting the minimum staffing
and 24/7 RN requirements and how
much of the costs would be passed onto
payors (including Medicaid, Medicare,
private insurers, and nursing facility
residents). We expect LTC facilities
would generally have 3 possible
approaches to addressing the increased
costs associated with the higher staffing
levels: (1) reduce their margin or profit;
(2) reduce other operational costs; and
(3) increase prices charged to payors.
LTC facilities may use some
combination of these approaches, and
those approaches could vary by facility
and over time. These decisions could
depend on a number of factors,
including: the current margin levels of
a facility; the cost increase due to the
staffing requirements relative to current
costs and revenues; the current level of
operational costs; and the ability to
negotiate prices with payors.
With regards to payors, we have
facility level data on the percentage of
resident days paid for by Medicaid,
Medicare, and other payors for the
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estimates in this RIA. We used these
data to estimate the potential share of
costs for each payor by weighting each
facility’s increased costs by the
percentage of resident days paid for by
each payor type. As we show in table
23, the potential Medicaid share of costs
excluding collection of information
costs is 67 percent—that is, if all of the
costs of the staffing requirements were
passed on to payors, Medicaid could be
expected to pay about two-thirds of the
total costs. Similarly, as we show in
table 24, the potential Medicare share of
costs is approximately 11 percent of the
total costs, with other payors potentially
bearing the other 22 percent of the total
costs. As we note in our analysis below,
however, our cost estimates assume that
LTC facilities and not payors will bear
the rule’s costs.
Additionally, we have estimated in
table 21 the economic impact of the
requirement that States report, by
facility and by delivery system (if
applicable), on the percentage of
Medicaid payments being spent on
compensation for direct care workers
and support staff delivering Medicaidcovered nursing facility and ICF/IID
services. Under this final rule the
requirements become effective in 4
years. We estimate an initial
implementation cost of $9,355,472 for
years 1 to 4 (resulting in total initial
implementation costs of $37,421,888)
and ongoing annual costs of $18,305,713
per year starting in year 5.
In response to the proposed rule (88
FR 61352–61429), we received
approximately 46,520 total comments,
of which more than 16,000 included
comments related to the content of the
regulatory impact analysis related to the
minimum staffing standards.
Commenters included numerous
individuals who were LTC residents/
families/caregivers/staff, industry,
national advocates, national
professional organizations, labor unions,
and academic researchers. In this final
rule, we provide a summary of the
public comments received and our
responses to them, including relevant
changes in the RIA methodology and
estimate.
Comment: Many commenters
expressed concern about the cost
estimates and the estimates of the
number of employees that facilities
would need to hire to meet the proposed
requirements, as well as the
assumptions underlying these estimates.
Some commenters stated CMS
overestimated the cost of implementing
the requirements since it assumed that
nursing homes will retain LPNs/LVNs
when the commenters expect that
nursing homes will actually lay off
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LPNs/LVNs and replace them with
lower paid NAs to meet the 2.45 NA
HPRD requirement, significantly
reducing this requirement’s cost. They
also suggested that the cost of meeting
the 24/7 RN and 0.55 RN HPRD
requirements would be much lower
than estimated since nursing homes
would similarly lay off LPNs/LVNs and
replace them with RNs, rather than
maintaining LPN/LVNs at current level.
These commenters noted that the rule’s
requirement would cost only a small
portion of the industry’s revenues and
suggested that CMS should implement
an even a higher minimum staffing
standard of 4.2 HPRD, with one outside
study showing a 4.2 HPRD requirement
including 0.75 RN HPRD, 1.4 license
nurse HPRD, and 2.8 NA HPRD, would
cost $7.25 billion annually.
Other commenters stated that CMS
underestimated the costs for the
requirements in the proposed rule and
the number of nurse staff necessary to
meet the requirements. Several
commenters cited high growth in staff
costs for the individual facilities in
which they work or manage over the
past few years, especially during the
public health emergency (PHE).
Commenters stated that Medicare and
Medicaid reimbursement rates have not
kept pace with rising costs. Other
commenters suggested that CMS
consider including the cost of using
agency/contract staff in the impact
analysis and consider not increasing
staffing minimums but rather mandating
the wages that staffing agencies can
charge so that nursing homes are able to
succeed financially. Other commenters
stated that CMS used wage labor data
from 2019 that is no longer current to
what facilities are paying and that
assuming a 2.31 percent increase in real
wage rates was underestimating future
wage increases.
Other commenters cited individual
analyses they had done of staffing and
cost data, which showed different costs
than we estimated with estimates
ranging from $4 billion to $7.1 billion
annually. Many commenters cited an
analysis of the proposed rule done by
CliftonLarsonAllen (CLA), which
estimated that the proposed 24/7 RN
requirement, 0.55 RN HPRD
requirement, and the 2.45 NA HPRD
requirement would cost a total cost of
$6.8 billion annually, even with
exclusion of increases in real wage rates
and higher wage rates for contract
employees. This analysis also estimated
that more RNs and NAs would need to
be hired than what our analysis
estimated. A large number of
commenters also cited an analysis done
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by Leading Age, which estimated a total
cost of $7.1 billion annually.
One commenter indicated that they
had been involved with creating the
Leading Age cost estimate and, writing
in a personal capacity, noted that a
central reason for the difference in costs
was due to growth in wage rates from
2021 to 2023 and that this $7.1 billion
cost estimate is based on daily rather
than quarterly nurse staffing data from
the Payroll Based Journal (PBJ). This
commenter also stated that CMS cost
estimates failed to include a providerbased adjustment to account for the use
of contract staff and that our estimated
wage growth of 2.31 percent was too
low. They suggested using more recent
Medicare cost data and other wage
source data and highlighted the need for
a SNF-specific wage index based on
audited cost reports. Finally, they noted
that the cost estimate excludes some
nursing homes where cost or staffing
data were unavailable, including
nursing homes in Guam and Puerto
Rico, leading to an underestimation of
the actual cost. Other commenters stated
that the CMS analysis assumed no costs
for facilities prior to each requirement
going into effect and ignored the
potential impact of these costs on
Medicare, Medicaid, and non-Medicare/
Medicaid payors.
Response: We appreciate the
commenters sharing their insights into
the costs that their facilities have
accrued to hire staff in recent years, as
well as the comments highlighting how
using differing data sources, such as
contract nursing wage rates, and
assumptions, such as using daily rather
than quarterly nurse staffing data from
the PBJ, influence the estimated cost
and the number of employees facilities
would need to hire.
We appreciate the commenters
sharing their various hiring practices
and information about their costs for
hiring nurse staff in recent years. As we
highlighted in the proposed rule
through various breakdowns of the data
by state, facility size, geographical
location (rural vs. urban), and whether
the facility is certified by Medicare,
Medicaid, or dual certified, the cost for
facilities to meet the 24/7 RN and HPRD
requirements varies.
We also appreciate the commenters
referring us to the CLA and Leading Age
analyses showing an estimated $6.8
billion and $7.1 billion annual cost,
respectively, when the rule is fully in
effect and providing a copy of these
analyses. In reviewing these alternative
cost estimates, we have identified key
differences between our estimation
strategy and these estimation strategies
that appear to have led to differing
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estimates and we provide additional
information regarding why we have
decided to retain our estimation strategy
and model assumptions.
CLA’s $6.8 billion cost estimate
indicates that it calculates the rule’s cost
using the median, or the wage rate
including salaries and allocated benefits
for the single employee who earns
middle wage rate, for each staff type
from Medicare cost reports released as
of July 2023 using form S–3, Part V,
column 5. We would note, however,
that column 5 contains the loaded
mean, or average wage rate including
allocated benefits for the employee type.
For example, for NAs, it contains the
average loaded salaries for all NAs that
the facility employs. In light of this
inconsistency, we are unsure how this
outside analysis calculated median
wage rate using Medicare cost reports.
Calculating the median hourly wage rate
for each nurse staff type requires
obtaining wage data on every NA, LPN/
LVN, and RN in every facility, or
alternatively, having each of the more
14,000 nursing homes share the data for
the RN, LPN/LVN, and NA in their
facility who earns the middle wage
among all RNs, LPNs/LVNs, and NAs
they employ. We do not have these data
and do not know of a source that
provides it. As such, we continue to use
the loaded mean hourly wage to
calculate costs for the final rule.
In reviewing the $6.8 billion estimate,
the provided documentation indicates
that it is based on wage rates only for
employees. In contrast, our estimate, as
well as the Leading Age estimate,
calculates costs based on average hourly
wage rates for employees and
contractors. Calculating costs based only
on employee wages requires an
assumption that hours that contract
employees are currently working would
not count toward the minimum
requirements and lead to facilities
needing to hire more staff to meet the
requirement. This assumption leads to a
higher cost for meeting the
requirements. We would note, however,
that all hours worked by both
employees and contract staff count
toward the requirements we are
finalizing. In addition, including costs
for both employees and contract staff
provides a more accurate picture of the
average hourly wage that each facility is
paying to their nurse staff. As a result,
in this final rule, we are maintaining the
inclusion of all nursing hours worked
by employees and contract staff to
calculate additional employees needed
and continue to use overall average
hourly rates to calculate the cost.
The CLA estimate indicates that the
$6.8 billion cost was calculated based
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on a combination of 2021 and 2022
Medicare cost reports, without
specifying the share of reports that come
from each fiscal year. Our analyses and
all costs are measured in FY 2021 US
dollars and costs each year are provided
in real 2021 US dollars rather than
nominal dollars. Adjusting for general
inflation, $6.8 billion in 2022 Dollars is
approximately $6.3 billion in 2021 US
dollars.107 For Leading Age’s $7.1
billion annual estimate, the authors
indicate that it is based on 2023 US
dollars, which they calculate by
increasing costs from the 2021 cost
reports by 13 percent to account for
inflation. In 2021 US dollars this would
similarly be $6.3 billion.
In reviewing the CLA’s $6.8 billion
estimate, the authors indicated that
using Q1 2023 PBJ data, nearly 80
percent of nursing homes would need to
hire staff to meet the 24/7 RN
requirement based on daily data. Our
review of Nursing Home Care Compare
data from March 2023, however, shows
that for the facilities for which RN hours
per day data are available, only 24.5
percent of facilities, or 3,578 facilities,
would need to hire RNs using the
following formula: Total RN Hours per
Resident Day = Reported RN Staffing
Hours per Resident Day × Average
Number of Residents per Day. The same
analysis of Nursing Home Care Compare
data from January 2024 similarly shows
that only 22.1 percent, or 3,202 facilities
would need to hire RNs to meet this
requirement. For Leading Age’s $7.1
billion cost estimate, one commenter,
writing in a personal capacity, indicated
that they were involved in calculating
this estimate and that the higher cost
came by analyzing daily, rather than
quarterly, data from the PBJ. While there
may be days within a particular quarter
where a nursing home that meets the
requirements overall based on quarterly
data did not meet it on an individual
day, we estimate that they would
reallocate their existing staffing
resources to ensure compliance with the
rule on a continual basis and to reflect
resident census changes. As such, we
disagree with the estimate that nearly 80
percent of nursing homes would need to
hire staff to meet the 24/7 RN
requirement. Our analysis estimates that
only 22.2 percent of nursing homes
would need to hire staff to meet the 24/
7 RN requirement. We also assume that
they would reallocate staff hours during
the week to meet the 0.55 RN, 2.45 NA,
and 3.48 total nurse staff HPRD
requirements.
We appreciate the comment about
adjusting the cost based on the share of
contract staff that a facility uses and
taking into consideration the need to
use contract staff to meet the
requirements. We also appreciate the
comment about taking into account
facilities for which there are no salary
or staffing data. As we have noted
above, all cost estimates calculate
facility wage rates for each nurse type
based on wages for both employee and
contract staff in each nurse (RNs, LPNs/
LVNs, and NAs) type. With regards to
missing facilities, we note that our
analysis includes data from all available
facilities where there was staffing
information available in the October
2021 Nursing Home Compare dataset.
This included 14,688 facilities out of
15,270 facilities, or approximately 96.1
percent (14,688/15,270). We believe,
therefore, that the cost estimate would
remain similar even if these additional
nursing homes, for which staffing data
were unavailable, were included in the
analysis. We are, however, adding
additional language in the detailed
economic analysis below to clarify that
wages are based on costs for both
contract staff as well as employees, as
well as to clarify how we imputed any
missing data.
We appreciate the commenters
feedback on expected increase in wage
rates for nurse staff. We note that all
cost estimates are provided in 2021 US
dollars and the growth in wage rates we
use, are real wage rate growth. That is,
the estimates take into account annual
inflation and assume that wages are
meaningfully increasing above inflation.
Over 10 years, we are estimating a
nearly 23 percent increase in real wage
rates. We note that between 2001 and
2017, a 16-year period, real wage rates
for nurses increased by only 9.92
percent.108 Reviewing Bureau of Labor
Statistics data for more recent years also
suggests that our estimated increase is
reasonable. Between 2019 and 2022,
average hourly nominal wages for NAs
increased from $14.77 to $17.41, or 17.8
percent, while average hourly nominal
wages for RNs increased from $37.24 to
$42.80, or 7.6 percent. Taking into
account inflation, however, real wages
increased by approximately 3 percent
for NAs and declined by 0.37 percent
for RNs. As such, we believe that our
estimate of a 23 percent increase in real
wage rates for nurse staff in 10 years
107 Federal Reserve Bank of Minneapolis.
Inflation Calculator. Accessed February 26, 2024.
https://www.minneapolisfed.org/about-us/
monetary-policy/inflation-calculator.
108 Barry J. Real wage growth in the U.S. health
workforce and the narrowing of the gender pay gap.
Human Resources for Health. 2021;19: 105. doi:
10.1186/s12960–021–00647–3.
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does not underestimate growth in wage
rates and we maintained this wage rate
increase as cited in the proposed rule.
In addition, we continue to use cost data
from 2021 Medicare cost reports since
our analysis provides all costs in 2021
US dollars addressing concerns that
more recent wage data would provide a
higher cost estimate in 2021 US dollars.
We appreciate the opportunity to
provide clarification regarding costs that
facilities may incur to hire staff prior to
each requirement’s effective date since
facilities will likely start hiring staff to
meet the requirements before the
effective date. In the proposed rule, as
well as this final rule, the cost estimates
for each requirement includes costs that
facilities may incur in the year before
each requirement going into effect as
they hire employees in anticipation of
the requirement. For example, in the
proposed rule, we proposed that for
facilities located in urban areas, the 24/
7 RN requirement would go into effect
2 years after the date of publication.
This means that these facilities would
be required to meet the requirement
starting 2 years, or 24 months, from the
date of publication. In the cost analysis,
both in the proposed rule, as well as this
final rule, however, we included costs
for facilities to meet the 24/7 RN
requirement during all of year 2 (12–24
months) after the date of publication, or
1 year before the requirement went into
effect. We included costs for facilities
prior to the requirement date to
acknowledge that facilities will likely
need to hire RNs for this requirement
before 2 years after the date of
publication, rather than instantaneously
hiring them 2 years after the date of
publication. We appreciate the
commenter bringing this issue to our
attention and have provided this
clarification below in the detailed
economic analysis.
Finally, we acknowledge that costs
could in theory be much lower than we
estimated if, as suggested by some
commenters, facilities transitioned away
from LPNs/LVNs when hiring nurses to
meet the proposed requirements. We
would note, however, that there are
transition costs of hiring and firing that
have not been quantified. We would
also note that facilities have the option
to use any nurse staff type, including
LPNs/LVNs, to meet the 3.48 total nurse
staff HPRD requirement included in the
final rule, which would reduce any
incentive to transition from LPNs/LVNs
to NAs and our intent is for facilities
already meeting the minimum staffing
requirements not to scale down or
adjust staffing types as a result of this
rule. As such, we believe that there is
a low likelihood that facilities will
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transition away from LPNs/LVNs to
meet the requirements in this rule and
of course, expect that facilities will not
lay off staff necessary to serve patients
with their existing case mix. We do not
believe that we could accurately predict
facility behaviors with respect to LPNs/
LVNs. Due to the role that LPNs/LVNs
can play in meeting the 3.48 HPRD
requirement and the related reduced
likelihood of nursing homes ending
employment of LPNs/LVNs in light of
this policy change, it would understate
the effects of the final rule to attempt to
reduce overestimation of effects of the
rule as proposed and thus we have
decided to retain our assumption that
facilities will retain LPNs/LVNs at their
current level. Given these factors, we are
retaining our estimation methodology as
we believe it provides an accurate
estimate of the rule’s estimated
economic cost. We would note,
however, that we have modified the
formula to estimate the cost over 10
years since in the proposed rule the cost
estimate provided for the alternative
policies that we are now finalizing was
based on the 3.48 HPRD requirement
going into effect the same time as the
0.55 RN HPRD and 2.45 NA HPRD
requirements. Since this final rule
requires facilities located in urban areas
to meet the 3.48 HPRD requirement 2
years following publication of this rule,
which is 1 year prior to the
implementation date of the 0.55 RN
HPRD and 2.45 NA HPRD requirements,
and for rural facilities to meet the 3.48
HPRD requirement 2 years prior to the
implementation date of the 0.55 RN and
2.45 NA HPRD requirements, we
modified the formula to take into
account that nurse staff hired to meet
the 3.48 total nurse HPRD requirement
can also count toward meeting the
individual NA requirement that will be
implemented in future years. We detail
these changes below in the detailed
economic analysis section.
Comment: Multiple commenters
provided feedback on other effects apart
from increased costs and the need to
hire new nurse staff that would emerge
from the staffing requirements. Some
commenters said that nursing homes
may lay off non-nurse staff members
and cut resident activities, such as bingo
night, which contribute to patients’
quality of life, to fund the requirements
since nursing homes are already
struggling financially with the rising
costs of inflation, food, insurance, and
an already increased payroll. One
commenter stated that the rule may also
increase operating expenses more
generally. Other commenters expressed
concern that without additional
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Medicare and Medicaid funding, which
varies by state, the rule could result in
access to care issues, especially in rural
and underserved communities.
Specifically, commenters noted that the
staffing requirements’ costs could lead
some facilities to close and other
facilities to limit the numbers of
residents they admit due to insufficient
nurse staff to accept more residents.
Commenters stated that this effect
would likely be higher for nursing
homes with a larger share of residents
utilizing Medicaid, which are more
likely to need to hire staff to meet one
or more of the requirements, as well as
nursing homes in rural areas that may
have difficulty attracting nurse staff or
contract employees. Commenters noted
that for some rural communities, the
closure of facilities could have far
reaching impacts on the community
leading individuals to leave or forcing
nurse home employees to commute long
distance to other cities for work,
negatively impact the local economy
and community life. Commenters
suggested analyzing potential bed losses
due to the rule, which in turn, could
have adverse effects on hospitals who
would be unable to discharge patients,
leaving them with less space for new
patients and increasing the
government’s cost for patients whose
care was covered by Medicare or
Medicaid. Commenters also suggested it
could have a negative impact on other
health care facilities, such as inpatient
rehabilitation facilities, which could see
greater struggles to find nursing home
bed space for their patients.
Commenters noted that facility closures
could lead residents to be placed further
away from the families negatively
impacting their overall well-being, or
alternatively, nursing homes could pass
on the cost to consumers reducing
consumers’ savings and leading them to
use Medicaid. Commenters also
suggested that nursing homes may stop
accepting patients using Medicaid due
to low reimbursement rates, negatively
impacting patients who utilize
Medicaid.
Other commenters challenged the
idea that the rule will be a burden for
facilities. They stated that many
facilities are diverting funds away from
resident care and toward corporate
profits. As such, commenters suggested
that CMS should not assume that
facilities will have challenges meeting
the staffing standard and additional
actions should be taken to create
transparency regarding facility
spending. Some commenters expressed
concern that phasing-in the nurse
staffing requirements would negatively
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impact patients and staff members,
specifically that phasing-in the
requirements means a delay in
improved quality of care for residents
negatively affecting their health, safety,
and quality of life. Commenters also
suggested that low staffing levels will
lead to continued employee burnout,
making them more likely to quit
resulting in increased difficulty for
facilities to meet the requirements.
Finally, multiple commenters noted that
the rule does not include increased
Medicare or Medicaid reimbursement
rates for nursing home residents and
that current reimbursement rates have
not kept pace with rising costs in recent
years. These commenters said that
Medicaid reimbursement rates should
be increased to ensure access to care
and to pay staff a wage that can support
a family. Other commenters noted that
there is wide variation in Medicaid
reimbursement rates across states and
asked CMS to consider how this
variation will impact facilities’ ability to
meet the requirements. Finally, some
commenters said that they would be
forced to hire agency staff at an inflated
cost with no guarantee of quality care or
positive patient outcomes.
Response: We appreciate the
thoughtful and insightful comments
regarding additional effects that could
emerge from the staffing rule. CMS
requires facilities to provide appropriate
staffing and extracurricular activities to
ensure the highest quality of care for
residents in accordance with resident
assessment, care plans, and resident
preferences (see existing requirements at
§ 483.24(c)). In developing this rule, we
sought to ensure resident health and
safety while also maintaining access to
care. While CMS agrees with
commenters highlighting that phasingin the requirements could lead to a
delay in residents receiving higher
quality care, as well as continued staff
burnout, these effects are difficult to
quantify and must be balanced with
challenges associated with more rapid
implementation of these requirements.
As such, we have maintained our
regulatory approach that phases in the
different staffing requirements over 5
years.
Taken broadly, access to care
comments addressed two main issues:
finding sufficient staff and the cost for
hiring staff. According to the U.S.
Bureau of Labor Statistics, in 2022 there
were 3,072,700 RNs in the United
States.109 As finalized, the rule would
109 U.S. Bureau of Labor Statistics. Occupational
Employment and Wages, May 2022: 29–1141
Registered Nurses. Accessed February 26, 2024.
https://www.bls.gov/oes/current/oes291141.html.
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require the hiring of approximately
16,000 RNs to meet both the 24/7 RN
requirement and the 0.55 RN HPRD
requirement. This is approximately 0.5
percent of all non-self-employed RNs in
the labor force. HRSA’s National Center
for Health Workforce Analysis uses a
Health Workforce Simulation Model to
project the supply and demand for
health workers, including RNs.110 The
National Center projects a 10 percent
shortage of RN in 2026 and 2031, that
will be reduced to 9 percent by 2036.111
Projected supply adequacy of RNs varies
considerably across States, ranging from
a shortage of 29 percent in Georgia to a
projected 42 percent oversupply in
North Dakota in 2036.
Hiring necessary for facilities to meet
the NA HPRD requirement will
represent a larger portion of NAs
available nationwide, and this rule has
taken three steps to minimize the
impact on access to care and to prevent
the closure of facilities due to
inadequate staff availability.
The first is to allow facilities located
in areas with nurse staff shortages to
apply for an exemption from the staffing
requirements. Facilities located in areas
with nurse staff shortages, as defined in
the regulatory text at § 483.35(h), are
eligible for exemptions that include: an
8-hour per day exemption from the 24/
7 RN requirement, an exemption from
the 0.55 RN HPRD requirement, an
exemption from the 2.45 NA HPRD
requirement, and an exemption from the
3.48 total nurse staff HPRD requirement.
These exemptions could reduce both the
rule’s cost as well as the number of
nurse staff needed helping to ensure
continued access to care. Based only on
being located in an area with nurse staff
shortage, a preliminary analysis of the
data suggests that more than 29 percent
of facilities would be eligible for an 8hour exemption from the 24/7 RN
requirement and the 0.55 RN HPRD
requirement, 23 percent of facilities
would be eligible for an exemption from
the 2.45 NA HPRD requirement, and 22
percent of facilities would be eligible for
an exemption from the total nurse staff
requirement. Among rural facilities,
more than 67 percent of facilities would
be eligible for an 8-hour exemption from
the 24/7 RN requirement and a total
exemption from the 0.55 RN HPRD
requirement, 19 percent would be
110 Department of Health and Human Services,
Health Resources and Services Administration,
Health Workforce Projections. Available at https://
data.hrsa.gov/topics/health-workforce/workforceprojections. April 2024.
111 Nurse Workforce Projections, 2021–2036
(hrsa.gov) https://bhw.hrsa.gov/sites/default/files/
bureau-health-workforce/data-research/nursingprojections-factsheet.pdf. March 2024.
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eligible for an exemption from the 2.45
NA HPRD requirement, and 40 percent
would be eligible for an exemption from
the 3.48 total nurse staff HPRD
requirement. Since facilities would also
need to meet all other requirements to
obtain an exemption, however, these
numbers are not reflective of the
number of facilities estimated to fully
qualify for the exemptions as they only
describe the number of facilities that
would satisfy the workforce availability
criterion. Second, CMS is launching an
initiative to provide over $75 million in
financial incentives, such as
scholarships and tuition reimbursement,
to make it easier for nurses to enter
careers in nursing homes. CMS is also
exploring the potential to provide
additional technical assistance to LTC
facilities regarding staffing through the
Quality Improvement Organizations.
Finally, rather than requiring facilities
to immediately meet the staffing
requirements, we have taken a phasedin approach to the requirements to help
ensure that an adequate workforce is
available and to reduce the cost. For
facilities located in urban areas, the
requirements will be phased in over 3
years. Specifically, these facilities will
have 2 years to comply with the 3.48
total nurse HPRD and the 24 hours per
day, 7 days a week RN requirement and
have 3 years to comply with the 0.55 RN
and 2.45 NA HPRD requirements. For
facilities located in rural areas,
requirements will be phased in over 5
years. Specifically, these facilities will
have 3 years to comply with the 3.48
total nurse HPRD and the 24 hours per
day, 7 days per week RN requirement
and will have 5 years to comply with
the 0.55 RN and 2.45 NA HPRD
requirements. While we view the
exemptions and the phasing in of the
nurse staff requirements as necessary to
ensure access to care, we acknowledge
that they do come with negative effects
for residents and staff. Specifically,
exemptions and phasing in of the
individual staffing requirements will
result in residents residing in nursing
homes, which are not currently meeting
these requirements, in receiving either
less nurse care or a longer delay in
receiving the full hours of care per day.
Similarly, nursing home staff may
experience a heavier workload, leading
to higher burnout. As such, we believe
that there will be minimum negative
impact on workforce availability
throughout the care continuum,
minimal impact on nursing home bed
availability, and minimal increased
costs for Medicare and Medicaid due to
hospitals being unable to discharge
patients.
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We note that Medicare and Medicaid
payment rates for nursing home care are
outside the scope of this rule. With
regards to a SNF-specific wage index,
we refer commenters to the text
regarding this issue and its feasibility on
page 61411 in the proposed rule (88 FR
61410). Specifically, we note that
section 315 of the Medicare, Medicaid,
and SCHIP Benefits Improvement and
Protection Act of 2000 (BIPA) (Pub. L.
106–554, enacted December 21, 2000)
gave the Secretary the discretion to
establish a geographic reclassification
procedure specific to SNFs, but only
after collecting the data necessary to
establish a SNF PPS wage index that is
based on wage data from nursing homes.
To date, this has proven to be unfeasible
due to the volatility of existing SNF
wage data and the significant amount of
resources that would be required to
improve the quality of the data. More
specifically, auditing all SNF cost
reports, similar to the process used to
audit inpatient hospital cost reports for
purposes of the IPPS wage index, would
place a burden on providers in terms of
recordkeeping and completion of the
cost report worksheet. Adopting such an
approach would require a significant
commitment of resources by CMS and
the Medicare Administrative
Contractors (MACs), potentially far in
excess of those required under the IPPS,
given that there are nearly five times as
many SNFs as there are IPPS hospitals.
We continue to believe that the
development of such an audit process
could improve SNF cost reports in such
a manner as to permit us to establish a
SNF-specific wage index, but we do not
believe this undertaking is feasible at
this time (88 FR 53212).
Finally, while some commenters have
questioned whether agency contract
staff will increase quality care or
positive patient outcomes and said that
they may be forced to hire any available
staff to meet the requirement, we would
note that all nurse staff are required to
meet applicable state requirements to be
a nurse and are able to have a positive
impact on patient health and quality of
care. We would continue to encourage
facilities to ensure that they are utilizing
contract staff in a manner that best
improves patient care. In addition, all
other requirements governing LTC
facilities continue to apply, and we
expect facilities to deliver safe and highquality care to all residents, regardless
of the employment arrangement that
nursing home use to procure staff.
Comment: A few commenters,
including the Small Business
Administration’s Office of Advocacy,
suggested that CMS erroneously
certified that the rule will not have a
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significant economic impact on a
substantial number of small entities and
is violating the Regulatory Flexibility
Act (RFA), which requires agencies to
analyze options for regulatory relief of
small entities, if a rule has a significant
impact on a substantial number of small
entities. Specifically, commenters
pointed to an outside analysis by CLA
estimating that the rule’s actual annual
cost will be closer to $6.8 billion when
all requirements are in effect and when
compared to revenues for skilled
nursing facilities (NAICS 6231) and
intellectual and developmental
disabilities facilities (NAICS 6232) from
the 2017 Economic Census, would
exceed the 3 to 5 percent threshold that
HHS qualifies as economically
significant. They also noted that the
CMS should have included other LTC
facilities that rely on nurses in the RFA
certification. These include residential
mental health and substance abuse
facilities (NAICS 62322), Continuing
Care Retirement Communities and
Assisted Living Facilities for the Elderly
(NAICS 6233), Continuing Care
Retirement Communities (NAICS
623311), Other Residential Care
Facilities (NAICS 62399), and Services
for the Elderly and Person with
Disabilities (NAICS 62412). Finally,
they noted that costs should have been
analyzed on a per small entity basis to
make it easier to understand the rule’s
true impact.
Response: We appreciate the
comments provided. We have discussed
in detail in our comment response
above regarding our estimated cost, and
why we think that our estimate provides
a more accurate calculation of the likely
cost, and henceforth, are using it as the
basis for our conclusion. In summary,
the higher estimate from CLA uses
median wages for nursing homes, which
are not data that are publicly available
and do not appear on Medicare cost
reports, it does not appear to include
hours worked by contract employees in
the estimates, and it calculates costs in
2022 US dollars while we calculate
costs in 2021 US dollars. Meanwhile,
the higher estimate from Leading Age
appears to calculate costs based on daily
nurse staff levels and assumes that
nursing homes would not reassign staff
to different days in the week to meet the
requirements and provides estimates in
2023 US dollars. We would also note
that while one commenter indicated the
wages from the CLA estimate were from
2023 when wages were higher, this is
not the case. Rather, as the CLA
document provided indicates, this $6.8
billion cost estimate is based on a
combination of facility wage data from
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2021 and 2022. We believe that they
confused the Leading Age and CLA
estimates.
The rule also includes exemptions for
facilities that are located in areas with
nurse staff shortages that would allow
facilities to receive an 8 hour a day
exemption from the 24/7 RN
requirement, as well as exemptions from
the 0.55 RN HPRD requirement, the 2.45
NA requirement, and the 3.48 total
nurse staff HPRD requirement. These
exemptions could reduce both the rule’s
cost as well as the number of staff that
will need to be hired and thus help
supported continued access to care.
Given these changes in the
requirements, we maintain our
certification that this final rule will not
have a significant economic impact on
a substantial number of small entities
and do not analyze options for
regulatory relief of small entities beyond
the exemptions we have already
finalized in this rule.
With regards to the per facility
analysis, we would note that the
proposed rule provided multiple per
facility cost analyses for facilities
needing staff by state that include costs
for (1) rural compared to urban
facilities, (2) facilities of different sizes
(<50 beds, 50 to 100 beds, and >100
beds, and (3) Medicare, Medicaid, and
Dual Acceptance Status. We would also
note that analyzing the cost on a per
facility basis would lead to the same
percentage as we have estimated, since
costs were calculated based on all
facilities.
We appreciate some commenters
noting that our estimates of share of
revenues were based on 2017 dollars
that do not take into account cost
increases. Therefore, to more accurately,
estimate the estimated costs as a share
of revenues, we take into account
increases in the Consumer Price Index
to more accurately measure annual
revenues, which results in annual
revenues rising to approximately $179
billion in 2021 US dollars. We also
appreciate the suggestion to include
other long term care facilities that rely
on nurses in the analysis. We believe,
however, that the impact on these other
facility types would be minimal since
the requirements of this rule do not
apply to these other facility types.
Moreover, we would note that including
these additional facility types, with the
exception of ‘‘other residential care
facilities’’ that do not utilize significant
amounts of nursing staff, in the analysis
would increase total revenues for
affected industries to approximately
$275 billion in 2021 US dollars, which
would not change the analysis that the
rule does not have a significant
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economic impact on a substantial
number of small entities.
Comment: A few commenters
expressed concern that CMS
erroneously certified that the rule did
not violate the Unfunded Mandates
Reform Act (UMRA) since Tribal
governments own nursing homes that
this rule would affect.
Response: We recognize that Tribal
governments own nursing homes, as do
states and local governments. As we
have noted in the regulatory impact
analysis for the proposed rule, this rule
does not require Tribal governments to
provide additional financial resources to
meet any of the staffing requirements in
this rule. As such, we maintain our
certification that the rule will not
impose new requirements for Tribal
governments.
Comment: A few commenters stated
that CMS violated Federal law by not
engaging in meaningful discussion or
consult with Tribes before releasing the
proposed regulation that affects tribally
operated nursing homes in Indian
Country. They indicate that CMS seems
to have ignored detailed comments that
Tribal leaders and the CMS Tribal
Technical Advisory Group (TTAG)
submitted in response to CMS’ Request
for Information last year.
Response: Consistent with the CMS
Tribal Consultation Policy, CMS seeks
the guidance of Tribal leaders on the
delivery of health care for American
Indians/Alaska Natives (AI/AN) served
by the Marketplace, Medicare,
Medicaid, Children’s Health Insurance
Program, or any other health care
program funded by CMS. We believe
that we have followed the CMS Tribal
Consultation Policy by engaging in
meaningful discussions on this
regulation that affects tribally-operated
nursing homes. CMS reviewed and took
into consideration all comments
provided in the FY 2023 SNF PPS RFI,
including those comments specific to
the impact of any staffing rule on Tribal
nursing homes. As we outlined in the
proposed rule, we held two listening
sessions on June 27, 2022, and August
29, 2022, to allow all stakeholders,
including those with concerns about the
impact that a staffing standard will have
on tribally-owned nursing homes, the
opportunity to provide feedback on the
approach utilized for establishing a
minimum staffing standard (88 FR
61364). In addition, we attended the
CMS Tribal Technical Advisory Group
(TTAG) quarterly meeting on October
18–19, 2023, to provide an overview of
the NPRM and respond to questions and
comments from the TTAG. We
encouraged the TTAG to submit written
comments as outlined in the proposed
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rule and we have reviewed and
considered those comments in issuing
this final rule. Consistent with the
government-to-government relationship,
CMS is available to continue its
dialogue with Tribal governments and
the CMS TTAG and to provide technical
assistance as needed in the
implementation of this rule impacting
Tribal nursing homes.
Comment: One commenter noted that
they believe that this policy has
federalism implications and should be
subject to applicable federalism
requirements since the proposed rule is
intended to and would preempt the
applicability of any State or local law
providing for a maximum staffing level,
to the extent that such a State or local
maximum staffing level would prohibit
a Medicare and Medicaid certified LTC
facility from meeting the minimum
HPRD ratios and RN coverage levels.
They also note that facilities would be
required to meet applicable state and
Federal staffing laws and that CMS
failed to consult with state agencies and
other organizations in violation of
section 3(b) of Executive Order 13132.
Response: As we noted in the
federalism analysis section, to the extent
Federal standards exceed State and local
law minimum staffing standards, no
Federal pre-emption is implicated
because facilities complying with
Federal law would also be in
compliance with State law. We are not
aware of any State or local law
providing for a maximum staffing level.
This final rule, however, is intended to
and would preempt the applicability of
any State or local law providing for a
maximum staffing level, to the extent
that such a State or local maximum
staffing level would prohibit a
Medicare, Medicaid, or dually certified
LTC facility from meeting the minimum
HPRD requirements and RN coverage
levels finalized in this rule or from
meeting higher staffing levels required
based on the facility assessment
provisions finalized in this rule. As we
outlined in the proposed rule (88 FR
61364), we held two listening sessions
on June 27, 2022, and August 29, 2022,
to allow all stakeholders, including state
agencies and other organizations to
voice their concerns about the impact
that a staffing standard, and took into
consideration comments provided by
state agencies.
C. Detailed Economic Analysis
1. Impacts for LTC Minimum Staff
Requirement
a. Nursing Services (§ 483.35)
We are finalizing two changes to the
existing requirements for Nursing
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Services for LTC facilities at § 483.35.
We are requiring facilities to provide RN
coverage onsite 24 hours per day, 7 days
a week and to meet a minimum staffing
standard of 0.55 RN, 2.45 NA, and 3.48
HPRD for total nurse staffing. We note
that these estimates do not include
adjustments for any exemptions that we
may provide, which could reduce the
rule’s cost (including cost associated
with potential LTC facility closure or
reduction in patient load capacity per
facility) and benefits, based on the
frequency of exemptions.
(1). RN Onsite 24 Hours a Day, 7 Days
a Week (24/7 RN)
To estimate the cost to the industry of
full implementation of the requirement
that a facility have an RN on site 24
hours a day, 7 days a week (24/7 RN),
we first summed the current annual RN
salary cost for each facility. We then
subtracted this amount from the
estimated annual RN salary cost that the
facility will incur to meet the new
requirement.
To measure the current RN staff cost
to the industry, we estimated the total
number of RNs currently employed in
LTC facilities and their loaded
respective labor wages using data from
the 2022 Nursing Home Staffing Study,
which has information on 14,688 LTC
facilities. This study uses the 2021
SNF—Medicare Cost Report data set to
find the total facilities, the total number
of reported LTC specific RNs and their
loaded mean annual salaries, defined as
salary and fringe benefits. Specifically,
we calculated mean hourly wages for
both employees and agency staff by
using Column 3 in Worksheet S–3, Part
V and dividing it by the sum of reported
paid hours for RNs using data from
Column 4 in Worksheet S–3, Part V.112
For nursing homes with missing or
extreme values for hourly wages, we
imputed the wage rate based on the
state-level weighted hourly wage of nonoutlier nursing homes within the state.
Using this dataset, we were able to
estimate the aggregate RN loaded salary
costs and the cost per facility, including
the cost for contract RNs.
To estimate the RN cost per resident
census, we used the October 2021 Care
Compare data set that calculates average
hours per resident day (HPRD) for RNs
using the PBJ System data from 2021
Q2. Hours per resident day is defined as
the average hours of RN care that each
resident in the facility receives per day.
For example, a facility that has an
112 The cost report data utilized were from
October 18, 2022, and are available at https://
www.cms.gov/httpswwwcmsgovresearch-statisticsdata-and-systemsdownloadable-public-usefilescostreportscost/2021-1.
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40955
average HPRD of 0.5 for RNs would
provide, on average, 0.5 hours (30
minutes) of RN care for each resident.
We linked this dataset using the facility
unique ID variable with the 2021 SNF—
Medicare Cost Report data set to create
a complete dataset. Using this combined
dataset, we were also able to view the
impact by resident census as well as the
impact by LTC facility characteristics
such as facility ownership, bed size,
Five-Star Quality Rating System staffing
ratings, payer mix, and location. This
complete dataset helped provide an
understanding of which types of LTC
facilities would bear the largest cost
burden of a new Federal 24/7 RN
requirement.
For each facility, we first calculated
the total number of hours each day that
an RN is on site by multiplying the
average RN hours per resident day by
the average number of residents in the
facility (daily hours of RN care = RN
HPRD × Residents in Facility). We then
estimated the number of additional
hours of RN care that facility would
need to meet the 24/7 RN requirement
by subtracting the current daily hours of
RN care from 24 hours (additional daily
RN hours needed = 24 ¥ current daily
hours of RN care). We then calculated
the total number of additional RN hours
needed per year by multiplying this
amount by 365 (additional yearly RN
hours needed = additional daily RN
hours needed × 365). Finally, we
estimated each facility’s yearly cost for
meeting the requirement by multiplying
the total number of the yearly hours
needed by the loaded hourly wage
(yearly 24/7 RN cost = additional yearly
RN hours needed × facility RN wage
rate).
For example, if a facility had an
average of 0.4 RN HPRD and had 50
residents it would provide 20 hours of
total RN hours per day (0.4 HPRD × 50
residents = 20 total RN hours per day).
To meet the 24/7 RN requirement, this
facility would have to increase its total
RN hours per day by 4 hours (24 hours
needed ¥ 20 hours current RN care =
4 hours needed) and 1,460 hours (4
hours per day × 365 days/year)
annually. Using the loaded mean hourly
wage cost of $44 per hour, this facility
would spend $64,240 per year ($44 × 4
RN hours per day × 365 day per year =
$64,240) to be in compliance with the
24/7 RN requirement.
After estimating each facility’s cost for
meeting the 24/7 RN requirement, the
next step was to sum the additional cost
for all LTC facilities to meet the 24/7 RN
requirement for an aggregate cost to the
industry of $349 million per year. We
also found approximately 78 percent of
LTC facilities had 24/7 RN coverage
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within a 90-day window based on PBJ
System data from 2021 Q2, showing that
they provided at least 24 hours of RN
care per day. We assumed this estimate
for all quarters, for an annual estimate
of approximately 22 percent (100
percent ¥ 78 percent = 22 percent) or
3,261 LTC facilities (0.222 × 14,688 LTC
facilities = 3,261 LTC facilities) that
would need to increase their RN staffing
to comply with the 24/7 RN
requirement. Among this 22 percent of
facilities needing to increase RN
staffing, there was an average of 0.43
hours of RN care per resident day.
Table 15 summarizes the average
annual cost for LTC facilities to meet the
24/7 RN Staffing Requirement over a 10year period, which includes any
associated collection of information
costs as described in section IV. In
estimating the cost, we take into account
expected growth in wages that will
result from greater demand for RNs in
LTC facilities to meet the proposed 24/
7 RN requirement, as well as the 0.55
RN hours per resident day requirement
that we discuss in more detail later in
the analysis. All costs are reflected in
2021 US dollars.
There is uncertainty about how much
RN wages will change over the next 10
years due to changes in demand for RNs
emerging due to both this final rule, as
well as broader patterns of healthcare
use in the United States. A 2009
study 113 examined minimum licensed
nurse (RN/LPN) staffing standards in
California for acute care hospitals that
went into effect in March 2004. The
authors found that compared to
metropolitan areas outside of California
that did not have the regulation, RN
wage growth in California increased
12.8 percent more between 2000 and
2006. A more recent study 114 found that
real nurse wage rates increased by
nearly 10 percent between 2001 and
2017, with changes in rates varying
during years of U.S. economic growth
and recession. During its strongest
growth between 2001 and 2004, real
wages increased at an average rate of
2.41 percent annually. Given the
uncertainty in growth and increased
demands for RNs, we assumed that real
wages each year will increase at 2.31
percent.
We provide separate cost estimates for
facilities in rural and urban areas since
facilities in rural areas would have to
meet the requirement 3 years after the
final rule publication. Facilities in
urban areas, in contrast, would need to
meet the requirement 2 years after the
final rule publication. This resulted in
an average annual cost of approximately
$366 million in 2021 US dollars without
considering exemptions.
Table 15: Annual Cost for 24/7 RN Requirement
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10
10 Year Total Cost
$24,440,832.00
$25,005,415.00
$25,583,040.00
$26,174,009.00
$26,778,628.00
$27,397,214.00
$28,030,090.00
$28,677,585.00
$29,340,037.00
$30,017,792.00
$271,444,644
$0.00
$213,764,107.41
$218,702,058.29
$223,754,075.83
$228,922,794.98
$234,210,911.55
$239,621,183.61
$245,156,432.95
$250,819,546.55
$256,613,478.07
$2,111,564,589
(2) RN on Site 24 Hours a day, 7 Days
a Week (24/7 RN)—State Level Analysis
To provide a more in-depth
understanding of the financial and
staffing effects of the 24/7 RN
requirement, we examined its impact for
different groups of LTC facilities in each
State, as well as Washington DC and
Puerto Rico. We first assessed how
many full-time RNs LTC facilities will
need to hire to meet the finalized
requirement. In this analysis, we
defined a full-time employee as an
employee who worked 1,950 hours per
year. This definition was based on a
full-time employee working 5 days per
week, 8 hours per day, with a 30-minute
break (37.5 hours/week × 52 weeks/
year). To meet the 24/7 RN requirement,
each facility will need to provide a
minimum of 8,760 hours (24 hours/day
× 365 days) of RN care annually since
we did not include any facility
exemptions in these calculations. All
calculations used the October 2021
Nursing Home Care Compare data set
that provides each nursing home’s
average daily resident census and HPRD
for RNs using the PBJ system data for
2021 Q2.
For each facility, we first calculated
the total number of full-time RNs in the
113 Mark B, Harless DW, and Spetz J. California’s
Minimum-Nurse Staffing Legislation and Nurses’
Wages. Health Affairs. 2009;28 Supplement 1,
w326-w334. doi: 10.1377/hlthaff.28.2.w326.
114 Barry J. Real wage growth in the U.S. health
workforce and the narrowing of the gender pay gap.
Human Resources for Health. 2021;19: 105. doi:
10.1186/s12960–021–00647–3.
VerDate Sep<11>2014
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$0.00
$0.00
$146,603,030.04
$149,989,560.03
$153,454,318.87
$156,999,113.64
$160,625,793.16
$164,336,248.98
$168,132,416.34
$172,016,275.15
$1,272,156,756
$24,440,832.00
$238,769,522.41
$390,888,128.33
$399,917,644.86
$409,155,741.85
$418,607,239.19
$428,277,066.77
$438,170,266.93
$448,291,999.89
$458,647,545.22
$3,655,165,989.00
facility using the following formula:
(facility specific RN HPRD x average
daily resident census × 365)/1,950. For
example, if a facility has 100 residents
and provides an average of 0.2 RN
HPRD, then during the year, it will
provide a total of 7,300 hours of RN care
(0.2 RN HPRD × 100 residents × 365
days = 7,300 hours) yearly and have
3.74 full-time RNs. We then calculated
the number of additional full-time RNs
needed by subtracting the total hours of
RN care that the facility currently
provides yearly from the 8,760 hours
needed to ensure 24/7 RN coverage and
dividing by 1,950, which is the number
E:\FR\FM\10MYR3.SGM
10MYR3
ER10my24.096</GPH>
1
2
3
4
Federal Register / Vol. 89, No. 92 / Friday, May 10, 2024 / Rules and Regulations
Oklahoma
most overall RNs with the State needing
653 additional full-time RNs. Across the
United States, however, the number of
RNs that facilities will need to meet the
requirement varies widely with several
States, including Florida and Illinois,
needing to increase the size of their LTC
facilities’ RN labor force by less than 1
percent.
BILLING CODE 4120–01–P
437
118
27.0
568
83
14.6
158
5
3.2
762
29
3.8
1,026
1
0.1
7,575
9
0.1
Puerto Rico
0
0
29
0
0.0
Rhode Island
0
0
947
0
0.0
South Carolina
279
8
2.9
1,325
26
2.0
South Dakota
488
19
3.9
240
4
1.7
Tennessee
683
28
4.1
1,693
25
1.5
Texas
1,138
250
22.0
4,451
403
9.1
Utah
122
2
1.6
926
8
0.9
Vermont
250
4
1.6
72
1
1.4
Vir inia
574
6
1.0
1,951
22
1.1
Washinton
193
3
1.6
1,967
5
0.3
West Vir inia
399
10
2.5
682
2
0.3
Wisconsin
1,142
11
1.0
2,214
20
0.9
W omin
245
5
2.0
85
0
0.0
26,708
1,358
5.1
108,220
1,909
1.8
United States
khammond on DSKJM1Z7X2PROD with RULES3
percent increase in RNs that LTC
facilities in each State will need to meet
the proposed minimum staffing
standard barring any exemptions.
Oklahoma will need the largest increase
in RNs in percentage terms for rural
facilities, needing to increase the size of
its RN workforce by 27 percent.
Meanwhile, for urban facilities, the
largest percentage increase in RNs will
be in Louisiana at 17.6 percent.
Facilities in Texas will need to hire the
VerDate Sep<11>2014
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E:\FR\FM\10MYR3.SGM
10MYR3
ER10MY24.098</GPH>
of hours of yearly care provided by a
full-time RN. Continuing with our
example in this section, the nursing
home will need to provide 1,460
additional RN hours per year (8,760
hours¥7,300 hours = 1,460 hours) and
hire 0.75 additional full-time RNs.
Table 16 shows the total number of
RNs currently employed by LTC
facilities in each State’s urban and rural
areas, the number of full-time RNs that
LTC facilities will need to hire, and the
40957
40958
Federal Register / Vol. 89, No. 92 / Friday, May 10, 2024 / Rules and Regulations
437
118
27.0
568
83
14.6
158
5
3.2
762
29
3.8
1,026
1
0.1
7,575
9
0.1
Puerto Rico
0
0
29
0
0.0
Rhode Island
0
0
947
0
0.0
South Carolina
279
8
2.9
1,325
26
2.0
South Dakota
488
19
3.9
240
4
1.7
Tennessee
683
28
4.1
1,693
25
1.5
Texas
1,138
250
22.0
4,451
403
9.1
Utah
122
2
1.6
926
8
0.9
Vermont
250
4
1.6
72
1
1.4
Vir inia
574
6
1.0
1,951
22
1.1
Washinton
193
3
1.6
1,967
5
0.3
West Vir inia
399
10
2.5
682
2
0.3
Wisconsin
1,142
11
1.0
2,214
20
0.9
W omin
245
5
2.0
85
0
0.0
26,708
1,358
5.1
108,220
1,909
1.8
United States
khammond on DSKJM1Z7X2PROD with RULES3
We then assessed the financial cost
for facilities to implement the 24/7 RN
requirement. To estimate the yearly cost
per State, we used the formulas
described in section VI.C.1.(a) of this
rule to first estimate each facility’s
yearly cost to meet the requirement. We
also assumed that LTC facilities
exceeding the minimum requirements
for RNs will not reduce RNs to the
minimum required level or lay off other
staff to reduce costs. We then calculated
the average cost per resident day by
summing the total cost of meeting the
requirement for all facilities in the State
and dividing it by the total number of
VerDate Sep<11>2014
20:37 May 09, 2024
Jkt 262001
resident days for all facilities needing
additional RNs. We estimated the
average cost per resident day only for
facilities needing staff to provide a more
complete picture of the burden that the
rule will impose on these facilities.
Table 17 provides the yearly
Statewide cost to implement the
requirement, as well as the average cost
per resident day for facilities in rural
and urban areas that will need to hire
additional staff to meet the requirement.
Delaware has the highest cost per
resident day with a single facility that
is not meeting the 24/7 RN requirement
and will need to spend $87.45 per
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resident day. The highest overall cost
occurs in Texas where facilities will
need to collectively spend more than
$84 million to meet the minimum
staffing requirement. The cost also
varied across urban and rural areas. In
New Hampshire, LTC facilities in urban
areas that need staff will need to spend
an average of $8.95 per resident day to
meet the requirement, while in Hawaii,
Puerto Rico, and Wyoming these
facilities will occur no cost. Nevada will
have the highest average cost for rural
LTC facilities at $21.81 per resident day.
E:\FR\FM\10MYR3.SGM
10MYR3
ER10MY24.099</GPH>
Oklahoma
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E:\FR\FM\10MYR3.SGM
10MYR3
State
Yearly Statewide
Cost($ Million)
Average Cost per
Resident Day
(Statewide)
Urban LTC
Facilities
N eedine: RN s
Average Cost per
Resident Day (Urban
Areas)
RuralLTC
Facilities
N eedine: RN s
Average Cost per
Resident Day (Rural
Areas)
Alabama
1.1
$3.25
12
$3.86
6
$2.14
Alaska
0.2
$20.75
0
$0.00
2
$20.75
Arizona
1.1
$5.09
12
$5.80
1
$0.28
Arkansas
8.8
$3.62
64
$3.00
50
$4.59
California
44.5
$7.96
280
$7.81
20
$10.42
Colorado
1.8
$9.13
0
$0.00
17
$9.13
Connecticut
0.2
$6.24
2
$1.22
1
$19.09
Delaware
District of
Columbia
0.3
$87.45
1
$87.45
0
$0.00
0.0
$0.0
0
$0.00
--
--
Florida
2.4
$5.04
21
$4.92
8
$5.31
Georgia
13.0
$4.91
58
$4.54
66
$5.27
Hawaii
0.1
$10.08
0
$0.00
1
$10.08
Idaho
0.9
$6.34
5
$8.38
8
$5.04
Illinois
14.4
$6.95
55
$6.15
68
$7.86
Indiana
10.9
$5.87
74
$5.16
46
$7.48
Iowa
10.0
$6.18
37
$5.37
99
$6.51
Kansas
9.0
$7.14
38
$6.72
71
$7.41
Kentucky
1.2
$4.63
9
$3.01
8
$7.12
Louisiana
23.1
$4.43
134
$4.16
49
$5.34
Maine
0.8
$6.55
4
$5.55
8
$7.19
Maryland
0.6
$6.20
9
$6.20
0
$0.00
Massachusetts
3.1
$7.23
29
$7.23
0
$0.00
Michigan
4.2
$5.38
32
$5.89
12
$3.69
1.6
$5.05
14
$5.91
19
$4.39
2.3
$3.68
16
$3.81
21
$3.57
Missouri
23.5
$5.83
114
$5.29
114
$6.46
40959
Minnesota
Mississiooi
Federal Register / Vol. 89, No. 92 / Friday, May 10, 2024 / Rules and Regulations
20:37 May 09, 2024
ER10MY24.100</GPH>
Table 17: LTC Facilities in Each State Needing RNs and the Average Cost per Resident Day by Rural and Urban Location to
khammond on DSKJM1Z7X2PROD with RULES3
40960
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10MYR3
facilities based on their size into three
groups: less than 50 beds, 50 to 100
E:\FR\FM\10MYR3.SGM
requirement for facilities in each State
that will need additional RNs, dividing
PO 00000
Average Cost per
Resident Day
(Statewide)
Urban LTC
Facilities
N eedin11: RN s
Average Cost per
Resident Day (Urban
Areas)
RuralLTC
Facilities
Needin11:RNs
Average Cost per
Resident Day (Rural
Areas)
Montana
1.7
$6.16
6
$4.62
15
$6.96
Nebraska
5.6
$8.28
4
$5.50
58
$8.47
Nevada
0.7
$21.81
4
$21.81
New Hampshire
0.8
$8.54
7
$8.95
1
$6.61
New Jersey
1.7
$4.41
22
$4.41
0
$0.00
New Mexico
0.8
$5.00
4
$4.57
8
$5.34
New York
2.7
$5.57
21
$5.35
5
$6.75
North Carolina
5.6
$4.63
46
$5.15
19
$3.51
North Dakota
0.7
$6.94
0
$0.00
9
$6.94
Ohio
17.9
$4.94
142
$4.83
74
$5.23
Oklahoma
26.2
$7.77
83
$6.85
118
$8.54
Oregon
3.7
$8.78
29
$8.43
5
$11.97
Pennsylvania
0.7
$5.75
9
$7.44
1
$1.65
Puerto Rico
0.0
$0.00
0
$0.00
0
$0.00
South Carolina
2.8
$4.77
26
$4.73
8
$4.93
19
$5.23
South Dakota
1.6
$5.62
4
$7.36
Tennessee
4.2
$4.13
25
$4.32
28
$3.94
Texas
84.6
$6.28
403
$5.48
250
$7.95
Utah
0.7
$4.98
8
$5.79
2
$1.83
Vermont
0.3
$5.42
1
$0.65
4
$5.97
Virginia
2.1
$3.92
22
$3.87
6
$4.12
Washington
0.8
$6.76
5
$7.00
3
$6.41
West Virginia
1.1
$6.52
2
$5.81
10
$6.62
Wisconsin
2.6
$7.30
20
$7.42
11
$7.10
Wyoming
0.4
$8.60
0
$0.00
5
$8.60
United States
349.0
$5.97
1,909
$5.55
1,358
$6.71
Federal Register / Vol. 89, No. 92 / Friday, May 10, 2024 / Rules and Regulations
20:37 May 09, 2024
Table 18 shows the average cost per
resident day to implement the
VerDate Sep<11>2014
ER10MY24.101</GPH>
State
Yearly Statewide
Cost($ Million)
Federal Register / Vol. 89, No. 92 / Friday, May 10, 2024 / Rules and Regulations
khammond on DSKJM1Z7X2PROD with RULES3
beds, and more than 100 beds. Within
each group of LTC facilities, the cost
varied widely by number of beds and
State. In West Virginia, the average cost
VerDate Sep<11>2014
20:37 May 09, 2024
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per resident day for facilities that have
more than 100 beds and need additional
RNs will be $0.72, while in North
Carolina, the average cost per resident
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40961
day for facilities with fewer than 50
beds will be $29.19.
E:\FR\FM\10MYR3.SGM
10MYR3
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40962
VerDate Sep<11>2014
Satisfy 24/7 RN Requirement (Absent an Exemption)
LTC Facilities
NeedingRNs
Yearly Statewide Cost ($
Million)
Average Cost per Resident
Day (Statewide)
Cost-<50
Beds
Cost - 50 to 100
Beds
Cost> 100
Beds
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E:\FR\FM\10MYR3.SGM
Alabama
18
$1.10
$3.25
$0.94
$3.59
$2.09
Alaska
2
$0.20
$20.75
$20.75
$0.00
$0.00
Arizona
13
$1.10
$5.09
$11.17
$5.02
$4.23
Arkansas
114
$8.80
$3.62
$0.00
$4.63
$2.75
California
300
$44.50
$7.96
$17.35
$6.39
$3.33
Colorado
17
$1.80
$9.13
$15.46
$5.82
$5.67
Connecticut
District of
Columbia
3
$0.20
$6.24
$14.21
$0.00
$0.52
0
$0.00
$0.00
$0.00
$0.00
$0.00
Delaware
1
$0.30
$87.45
$0.00
$87.45
$0.00
Florida
29
$2.40
$5.04
$11.73
$4.14
$2.25
Georgia
124
$13.00
$4.91
$13.29
$5.37
$3.42
Hawaii
1
$0.10
$10.08
$10.08
$0.00
$0.00
Idaho
13
$0.90
$6.34
$7.54
$4.57
$6.57
Illinois
123
$14.40
$6.95
$13.93
$8.19
$4.02
Indiana
120
$10.90
$5.87
$12.74
$5.69
$2.33
10MYR3
Iowa
136
$10.00
$6.18
$7.92
$4.85
$2.24
Kansas
109
$9.00
$7.14
$8.26
$5.75
$2.62
Kentucky
17
$1.20
$4.63
$3.37
$5.41
$0.16
Louisiana
183
$23.10
$4.43
$10.25
$7.00
$3.85
Maine
12
$0.80
$6.55
$6.55
$6.56
$0.00
Marvland
9
$0.60
$6.20
$6.96
$2.13
$0.00
Massachusetts
29
$3.10
$7.23
$12.58
$7.42
$2.06
Michigan
44
$4.20
$5.38
$11.66
$4.50
$2.81
Minnesota
33
$1.60
$5.05
$5.61
$3.97
$0.00
Mississiooi
37
$2.30
$3.68
$9.72
$3.25
$1.50
Missouri
228
$23.50
$5.83
$11.26
$7.32
$3.61
Montana
21
$1.70
$6.16
$12.26
$3.78
$8.19
Federal Register / Vol. 89, No. 92 / Friday, May 10, 2024 / Rules and Regulations
20:37 May 09, 2024
ER10my24.102</GPH>
Table 18: Number of LTC Facilities in Each State Needing to Hire RNs and Average Cost per Resident Day by Facility Size to
khammond on DSKJM1Z7X2PROD with RULES3
Yearly Statewide Cost ($
Million)
Average Cost per Resident
Day (Statewide)
Cost-<50
Beds
Cost - 50 to 100
Beds
Cost> 100
Beds
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10MYR3
62
$5.60
$8.28
$10.60
$6.54
$4.94
Nevada
4
$0.70
$21.81
$24.40
$17.35
$0.00
New Hampshire
8
$0.80
$8.54
$12.34
$6.50
$4.07
New Jersev
22
$1.70
$4.41
$16.27
$2.60
$2.06
New Mexico
12
$0.80
$5.00
$7.70
$4.13
$5.28
New York
26
$2.70
$5.57
$6.83
$7.70
$1.77
North Carolina
65
$5.60
$4.63
$29.19
$3.66
$1.52
North Dakota
9
$0.70
$6.94
$6.42
$11.09
$0.00
Ohio
216
$17.90
$4.94
$9.75
$4.33
$3.71
Oklahoma
201
$26.20
$7.77
$18.00
$9.45
$5.09
Oregon
34
$3.70
$8.78
$12.43
$7.35
$9.33
Pennsylvania
10
$0.70
$5.75
$9.19
$3.19
$1.65
Puerto Rico
0
$0.00
$0.00
$0.00
$0.00
$0.00
South Carolina
34
$2.80
$4.77
$10.48
$4.78
$1.76
South Dakota
23
$1.60
$5.62
$7.27
$2.54
$0.00
Tennessee
53
$4.20
$4.13
$12.27
$4.54
$2.01
Texas
653
$84.60
$6.28
$10.93
$8.11
$5.01
Utah
10
$0.70
$4.98
$3.58
$6.01
$0.00
Vermont
5
$0.30
$5.42
$9.82
$2.01
$0.00
Virginia
28
$2.10
$3.92
$12.31
$3.44
$0.73
Washington
8
$0.80
$6.76
$14.04
$6.41
$1.42
West Virginia
12
$1.10
$6.52
$13.74
$3.98
$0.72
Wisconsin
31
$2.60
$7.30
$13.32
$5.52
$9.19
Wyoming
5
$0.40
$8.60
$17.49
$2.22
$0.00
United States
3,267
$349.0
$5.97
$11.17
$6.25
$4.07
40963
facility accepted patients with
Medicare, Medicaid, or both Medicare
E:\FR\FM\10MYR3.SGM
to meet the minimum staffing
requirement based on whether the
PO 00000
Nebraska
Federal Register / Vol. 89, No. 92 / Friday, May 10, 2024 / Rules and Regulations
20:37 May 09, 2024
In table 19, we calculated the average
cost by State for facilities needing staff
VerDate Sep<11>2014
ER10my24.103</GPH>
LTC Facilities
NeedingRNs
40964
Federal Register / Vol. 89, No. 92 / Friday, May 10, 2024 / Rules and Regulations
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and Medicaid. The highest per resident
day cost will be for 14 Medicaid-only
facilities in Illinois that will need to
spend an average of $29 per resident
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20:37 May 09, 2024
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day to meet the staffing requirement.
The lowest per resident day cost for
facilities needing staff will be for a
single Medicaid-only facility in South
PO 00000
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Dakota that will need to spend $0.33 per
resident day to meet the requirement.
E:\FR\FM\10MYR3.SGM
10MYR3
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E:\FR\FM\10MYR3.SGM
10MYR3
Medicaid Only
Facilities Cost per
Resident Day
Medicare
Only
Facilities
NeedingRNs
Medicare Only
Facilities Cost per
Resident Day
Medicare and
Medicaid
Facilities
NeedingRNs
Medicare and Medicaid
Facilities Cost per
Resident Day
Alabama
2
$5.10
1
$0.94
15
$3.14
Alaska
0
$0.00
0
$0.00
2
$20.75
Arizona
0
$0.00
2
$34.70
10
$3.75
Arkansas
1
$3.76
0
$0.00
111
$3.61
California
11
$9.11
13
$20.26
273
$7.54
Colorado
3
$23.37
0
$0.00
13
$6.41
Connecticut
0
$0.00
0
$0.00
3
$6.24
Delaware
District of
Columbia
0
$0.00
1
$87.45
0
$0.00
0
$0.00
0
$0.00
0
$0.00
Florida
0
$0.00
2
$10.71
24
$3.81
Georgia
1
$26.52
2
$34.37
121
$4.75
Hawaii
0
$0.00
0
$0.00
1
$10.08
Idaho
0
$0.00
1
$1.86
12
$6.68
Illinois
10
$5.35
0
$0.00
113
$7.10
Indiana
4
$7.88
2
$20.15
112
$5.50
Iowa
2
$5.26
1
$12.90
129
$6.09
Kansas
19
$10.72
0
$0.00
89
$6.52
Kentucky
0
$0.00
1
$0.68
15
$4.78
Louisiana
0
$0.00
6
$6.74
170
$4.48
Maine
0
$0.00
0
$0.00
10
$5.38
Marvland
0
$0.00
4
$7.68
4
$5.23
Massachusetts
0
$0.00
2
$10.03
25
$6.58
Michigan
1
$14.48
0
$0.00
42
$5.42
Minnesota
3
$8.26
0
$0.00
28
$4.75
Mississippi
5
$4.45
1
$23.67
31
$3.31
Missouri
6
$11.30
2
$3.08
219
$5.68
40965
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Facilities
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Federal Register / Vol. 89, No. 92 / Friday, May 10, 2024 / Rules and Regulations
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ER10my24.104</GPH>
Table 19: Number of LTC Facilities in State Needing to Hire Staff and Average Cost per Resident Day by Medicare,
Medicaid, and Dual Acceptance Status to Satisfy 24/7 RN Requirement (Absent Exemption)
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Medicaid Only
Facilities Cost per
Resident Day
Medicare
Only
Facilities
NeedingRNs
Medicare Only
Facilities Cost per
Resident Day
Medicare and
Medicaid
Facilities
NeedingRNs
Medicare and Medicaid
Facilities Cost per
Resident Day
Montana
0
$0.00
0
$0.00
21
$6.16
Nebraska
5
$13.34
0
$0.00
53
$7.28
Nevada
0
$0.00
0
$0.00
4
$21.81
New Hampshire
0
$0.00
0
$0.00
8
$8.54
New Jersey
0
$0.00
2
$5.28
19
$4.38
1
$5.96
0
$0.00
11
$4.95
New York
0
$0.00
0
$0.00
26
$5.57
North Carolina
0
$0.00
8
$70.04
56
$3.24
North Dakota
0
$0.00
0
$0.00
9
$6.94
Ohio
0
$0.00
4
$12.33
208
$4.81
Fmt 4701
Oklahoma
5
$18.96
1
$0.01
191
$7.58
Oregon
3
$4.27
2
$23.40
29
$8.89
Sfmt 4700
Pennsylvania
0
$0.00
2
$21.85
8
$3.66
Puerto Rico
0
$0.00
0
$0.00
0
$0.00
Rhode Island
0
$0.00
0
$0.00
0
$0.00
South Carolina
0
$0.00
10
$12.96
23
$3.43
South Dakota
4
$5.18
0
$0.00
19
$5.70
Tennessee
4
$14.91
2
$4.78
47
$3.51
Texas
14
$9.00
11
$9.40
620
$6.18
Utah
2
$3.04
1
$8.08
7
$5.34
Vermont
0
$0.00
0
$0.00
5
$5.42
Virginia
4
$7.68
3
$2.82
20
$2.88
Washington
0
$0.00
0
$0.00
8
$6.76
West Virginia
3
$19.82
0
$0.00
7
$5.00
Wisconsin
1
$26.97
2
$12.89
27
$6.73
Wyoming
0
$0.00
0
$0.00
5
$8.60
United States
114
$9.22
89
$13.44
3,003
$5.72
PO 00000
New Mexico
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20:37 May 09, 2024
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Medicaid Only
Facilities
Needing RNs
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Federal Register / Vol. 89, No. 92 / Friday, May 10, 2024 / Rules and Regulations
(3). Minimum Nurse Staffing
Requirement of 3.48 Total Nurse
Staffing HPRD, 0.55 RN HPRD, and 2.45
NA HPRD
To estimate the incremental impact of
the minimum nurse staffing requirement
requirements of 2.45 NA HPRD, 0.55 RN
HPRD, and 3.48 total nurse staffing
HPRD, we first estimated the industry’s
aggregate annual cost for nurse staff
(RNs, LPNs/LVNS, and NAs) at current
staffing levels. We then estimated the
aggregate annual cost for nurse staff
(RNs, LPNs/LVNs, and NAs) for all
facilities to meet these requirements. We
note that these HPRD requirements are
applied independent of a facility’s
individual case-mix, meaning the
expected costs to a facility are based
solely on the cost of facilities adding
additional staff to meet these
requirements, regardless of the facility’s
case-mix. Finally, we calculated the
requirements’ expected cost to the
industry by subtracting the industry’s
current nurse staff cost from the
estimated nurse staff cost for all
facilities to meet the minimum
requirements (Nurse Staff Cost for All
Facilities to Meet Minimum
Requirement—All Facilities’ Current
Nurse Staff Cost).
To measure the current nurse staffing
cost to the industry, we estimated the
total number of nurse staff currently
employed in LTC facilities and their
loaded respective labor wages. This
study used the 2021 SNF—Medicare
Cost Report dataset to find the total of
facilities, the total number of reported
LTC specific nurse-type staff and their
loaded mean annual salaries, defined as
salary and fringe benefits. Using this
dataset, we were able to estimate the
aggregate total nurse staffing salary costs
and the cost per facility, including the
cost for contract staff.
To estimate the nurse staffing cost by
staff type, that is, RNs, LPNs/LVNs,
NAs, per resident census we used the
October 2021 Care Compare data set
that calculates average hours per
resident day (HPRD) for each nurse type
using the PBJ System data from 2021
Q2. Hours per resident day was defined
as the average hours of care that each
resident in the facility receives from that
nurse type. For example, a facility that
had an average HPRD of 0.5 for RNs
would provide, on average, 0.5 hours
(30 minutes) of RN care for each
resident. We linked this dataset using
the facility unique ID variable with the
2021 SNF—Medicare Cost Report data
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set to create a complete dataset. Using
this combined dataset, we were also
able to view the impact by staff type per
resident census as well as the impact by
LTC facility characteristics such as
facility ownership, bed size, Five-Star
Quality Rating System staffing ratings,
payer mix, and location. This complete
dataset helped provide an
understanding of which types of LTC
facilities would bear the largest cost
burden of a new Federal minimum
staffing requirement.
Using the above dataset, we estimated
each facility’s current total annual
salary costs for each nurse type (RN,
LPN/LVN, NA) as follows: [facility
specific nurse type] loaded hourly wage
× [facility specific nurse type] reported
HPRD × facility-level average daily
facility resident census × 365. For
example, if a facility reported an average
loaded hourly wage of $44 for its RNs,
an average of 0.4 RN HPRD, and an
average daily resident census of 100, its
estimated annual salary costs for RNs
would be calculated as: $44 × 0.4 × 100
× 365 = $642,400. Taking this example
further, if this same facility reported a
loaded average hourly wage of $21 for
its NAs, an average of 2.1 NA HPRD,
and an average daily resident census of
100, its estimated annual salary costs for
NAs would be calculated as: $21 × 2.1
× 100 × 365 = $1,609,650. If this facility
only employed RNs and NAs as part of
its total nurse staff, then the facility’s
current total nurse staff cost would be
$2,252,050 ($642,400 + $1,609,650 =
$2,252,050). To estimate the aggregate
current nurse staff cost across all
facilities, the next step was to sum all
facilities’ current total (RN, LPN/LVN,
and NA) nurse staff cost for an overall
industry nurse staff cost of $43.4 billion.
c. 3.48 Total Nurse Staffing
Requirement
To estimate the cost of the 3.48 total
nurse staffing HPRD requirement, we
subtracted the total current nurse
staffing cost per facility from the total
nurse staffing cost per facility with the
3.48 total nurse staffing HPRD standard.
For the purpose of the cost estimates,
we continue the assumption stated in
the proposed rule that facilities would
hire NAs to meet the total nurse staffing
requirement. The formula applied to
calculate each facility’s cost of meeting
of meeting the requirement was: [[3.48
total nurse staffing HPRD] ¥ [facility
specific reported total nurse staffing
HPRD]] × facility specific NA hourly
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40967
wage × facility level average daily
resident census × 365. Using the same
LTC facility example from the paragraph
above where the facility had an average
of 0.4 RN HPRD and 2.1 NA HPRD, this
LTC facility would have a total of 2.5
(0.4 + 2.1 = 2.5) total nurse staffing
HPRD. To comply with the requirement,
it would need to increase its NA HPRD
from 2.1 to 3.08 adding an additional
0.98 (3.48 ¥ 2.5 = 0.98) HPRD. The cost
for this requirement on this facility
would thus be $751,170 ([3.48 ¥ 2.5] ×
$21 × 100 × 365) = $751,170).
When LTC facilities hire RNs to meet
the 24/7 RN requirement, which goes
into effect the same year as the 3.48 total
nurse staffing HPRD requirement, the
hours these RNs work will also count
toward the 3.48 total nurse staffing
HPRD requirement. To avoid
overestimating the number of nurse staff
that LTC facilities will need to hire to
meet the 3.48 total nurse staffing
requirement and the cost to hire them,
if a LTC facility has less than 3.48 total
nurse staff HPRD, we subtracted any
staff hours that the facility will need to
meet the 24/7 RN requirement up to the
point where the LTC facility will meet
the 3.48 total nurse staff HPRD
requirement.
After accounting for any increase in
RN hours per resident day to meet the
24/7 RN requirement, we then
calculated the total number of
additional hours per resident day of
nurse care that LTC facilities would
need to provide to meet the 3.48 HPRD
total nurse staff requirement. We did
this calculation by subtracting the total
nurse staff hours (RN, LVN/LPN, and
NA) provided from 3.48 using the
following formula: [3.48 ¥ (RN HPRD +
LVN/LPN HPRD + NA HPRD)]. For any
facilities that were below the 3.48 total
nurse staff HPRD requirement, we
assumed that they would hire NAs to
fulfill any remaining hours.
Once we apply this formula to each
facility in our dataset, we summed each
facility’s total cost to obtain the
requirement cost to the industry of
approximately $1.37 billion. To factor in
the 2.31 percent increase in real
increase in wage rates and the different
timeline for rural and urban facilities to
meet these requirements, in table 20 we
provide the estimated cost annually and
over 10 years. Overall, we estimate that
the requirement will cost an average of
approximately $1.36 billion annually
and $13.64 billion over 10 years.
E:\FR\FM\10MYR3.SGM
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40968
Federal Register / Vol. 89, No. 92 / Friday, May 10, 2024 / Rules and Regulations
Table 20: Annual and 10 Year Cost of3.48 Total Nurse Staff HPRD Requirement
Year
Rural Facilities
Urban Facilities
All Facilities
Year 1
$0
$0
$0
Year2
$0
$1,157,240,099
$1,157,240,099
Year3
$253,983,202
$1,183,972,345
$1,437,955,547
Year4
$259,850,214
$1,211,322,106
$1,471,172,320
Year 5
$265,852,754
$1,239,303,647
$1,505,156,401
Year6
$271,993,953
$1,267,931,561
$1,539,925,514
Year7
$278,277,013
$1,297,220,780
$1,575,497,793
Year 8
$284,705,212
$1,327,186,580
$1,611,891,792
Year9
$291,281,902
$1,357,844,590
$1,649,126,493
Year 10
$298,010,514
$1,389,210,800
$1,687,221,314
$2,203,954,765
$11,431,232,508
$13,635,187,273
10 Year Total Cost
c. Minimum Nurse Staffing Requirement
of 0.55 RN and 2.45 NA HPRD
When LTC facilities hire RNs to meet
the 24/7 RN requirement, which goes
into effect before the 0.55 RN HPRD
requirement, the hours these RNs work
will also count toward the 0.55 RN
HPRD requirement. To avoid
overestimating the number of RNs that
LTC facilities will need to hire and the
cost to hire them, if a LTC facility meets
the 0.55 RN HPRD requirement with
current staff including RNs hired for the
24/7 RN requirement, we estimate that
its cost is $0. For facilities that still need
to hire RNs to meet the 0.55 RN HPRD
requirement we calculate costs using the
following formula: [[0.55 RN HPRD] ¥
[facility specific RN HPRD + facility
specific RN HPRD resulting from 24/7
RN requirement]] × facility specific RN
hourly wage × facility level average
daily resident census × 365. Similarly,
When LTC facilities hire NAs to meet
the 3.48 total nurse staff HPRD
requirement, which goes into effect
before the 2.45 NA HPRD requirement,
the hours these NAs work will also
count toward the 2.45 NA HPRD
requirement. To avoid overestimating
the number of NAs that LTC facilities
will need to hire and the cost to hire
them, if a LTC facility meets the 2.45
NA HPRD requirement when including
NAs hired to meet the 3.48 total nurse
staff HPRD requirement, we estimate
that its cost is $0. For facilities that still
need to hire NAs to meet the 2.45 NA
HPRD requirement we calculate costs
using the following formula: [[2.45 NA
HPRD] ¥ [facility specific NA HPRD +
facility specific NA HPRD resulting
from 3.48 total nurse staff requirement]]
× facility specific NA hourly wage ×
facility level average daily resident
census × 365.
In table 21, we provide the estimated
cost annually and over 10 years for the
0.55 RN and 2.45 NA HPRD
requirements. These requirements have
a total cost of approximately $2.54
billion annually and $25.38 billion over
10 years.
Rural Facilities
Urban Facilities
All Facilities
Year 1
$0
$0
$0
Year2
$0
$0
$0
Year3
$0
$2,524,018,922
$2,524,018,922
Year4
$0
$2,582,323,759
$2,582,323,759
Year 5
$546,905,194
$2,641,975,437
$3,188,880,632
Year6
$559,538,704
$2,703,005,070
$3,262,543,774
Year7
$572,464,048
$2,765,444,487
$3,337,908,535
Year 8
$585,687,968
$2,829,326,255
$3,415,014,222
Year9
$599,217,360
$2,894,683,691
$3,493,901,051
Year 10
$613,059,281
$2,961,550,885
$3,574,610,165
$3,476,872,554
$21,902,328,505
$25,379,201,060
10 Year Total Cost
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20:37 May 09, 2024
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E:\FR\FM\10MYR3.SGM
10MYR3
ER10MY24.106</GPH>
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Year
ER10MY24.107</GPH>
Table 21: Annual and 10 Year Cost of 0.55 RN and 2.45 NA HPRD Requirements
Federal Register / Vol. 89, No. 92 / Friday, May 10, 2024 / Rules and Regulations
khammond on DSKJM1Z7X2PROD with RULES3
Table 22 summarizes the estimated
total cost for the comprehensive
minimum nurse staffing requirement
which includes any associated
collection of information costs as
described in section IV., Collection of
Information Requirements, but not the
regulatory review costs which we
discuss in more detail later in this
section. To account for real growth in
RN and NA wages over time, for each
requirement we continue to assume that
real wages for nurse staff, as well as
collection of information costs, will
VerDate Sep<11>2014
20:37 May 09, 2024
Jkt 262001
increase at 2.31 percent annually. Since
rural and urban LTC facilities have
different phase-in periods to meet the
24/7 RN and 3.48 total nurse staff HPRD
requirement (2 years for facilities in
urban areas and 3 years for facilities in
rural areas) and the 0.55 RN and 2.45
NA HPRD requirements (3 years for
facilities in urban areas and 5 years for
facilities in rural areas) we provided
separate cost estimates for facilities
located in each area. Over a 10-year
period, we anticipate an average annual
cost of approximately $4.3 billion.
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40969
We would note that the estimated
$21.9 billion cost for the 0.55 RN and
2.45 NA HPRD requirements over 10
years differs from the estimated cost of
$36.9 billion in the proposed rule. The
reason for this difference is that with the
3.48 HPRD total nurse staff requirement,
NAs hired to meet the requirement will
also count toward the 2.45 NA HPRD
requirement. As such, a large part of this
cost difference is reflected in the
calculated costs for the 3.48 total nurse
staffing requirement.
BILLING CODE 4120–01–P
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10MYR3
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10MYR3
ER10MY24.108</GPH>
24/7RN
Requirement
(Urban
Facilities)
24/7 RN
Requirement
(Rural Facilities)
3.48 Total Nurse
Staffing
Requirement
(Urban Facilities)
3.48 Total Nurse
Staffing
Requirement
(Rural Facilities)
0.55 RN and 2.45
NAHPRD
Requirements
(Urban Facilities)
0.55 RN and 2.45
NAHPRD
Requirements
(Rural Facilities)
Total Cost
$24,440,832
Collection of
Information
Costs for
Facility
Assessment
(§483.71
Facility
assessment)
$28,494,720
$0
$0
$0
$0
$0
$0
$52,935,552
$25,005,415
$29,152,948
$213,764,107
$0
$1,157,240,099
$0
$0
$0
$1,425,162,569
$25,583,040
$29,826,381
$218,702,058
$146,603,030
$1,183,972,345
$253,983,202
$2,524,018,922
$0
$4,382,688,978
$26,174,009
$30,515,371
$223,754,076
$149,989,560
$1,211,322,106
$259,850,214
$2,582,323,759
$0
$4,483,929,093
$26,778,628
$31,220,276
$228,922,795
$153,454,319
$1,239,303,647
$265,852,754
$2,641,975,437
$546,905,194
$5,134,413,050
$27,397,214
$31,941,464
$234,210,912
$156,999,113
$1,267,931,561
$271,993,953
$2,703,005,070
$559,538,704
$5,253,017,991
$28,030,090
$32,679,312
$239,621,184
$160,625,793
$1,297,220,780
$278,277,013
$2,765,444,487
$572,464,048
$5,374,362,707
$28,677,585
$33,434,204
$245,156,433
$164,336,249
$1,327,186,580
$284,705,212
$2,829,326,255
$585,687,968
$5,498,510,485
$29,340,037
$34,206,534
$250,819,547
$168,132,416
$1,357,844,590
$291,281,902
$2,894,683,691
$599,217,360
$5,625,526,077
Year
Year I
Year2
Year3
Year4
Years
Year6
Year7
Year8
Year9
Medicaid, or other non-Medicare/
Medicaid payors to increase payment
E:\FR\FM\10MYR3.SGM
This final rule does not include any
provisions requiring Medicare,
PO 00000
Collection of
Information
Costs for
24/7RN
(§483.35
Nursing
services)
Year 10
10 Year
Total
Cost
$30,017,792
$34,996,705
$256,613,478
$172,016,275
$1,389,210,800
$298,010,514
$2,961,550,885
$613,059,281
$5,755,475,730
$271,444,644
$316,467,914
$2,111,564,589
$1,272,156,753
$11,431,232,508
$2,203,954,765
$21,902,328,505
$3,476,872,554
$42,986,022,233
Federal Register / Vol. 89, No. 92 / Friday, May 10, 2024 / Rules and Regulations
20:37 May 09, 2024
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Table 22: Annual Cost for the Comprehensive Minimum Nurse Staffing Requirement
Federal Register / Vol. 89, No. 92 / Friday, May 10, 2024 / Rules and Regulations
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rates to providers to meet any or all the
expected costs of these finalized
requirements. Below, however, we
provide estimates of how much of the
estimated cost is due to residents whose
care is covered by three payor groups:
Medicaid, Medicare, and other nonMedicare/Medicaid payors.
Table 23 provides annual estimates
and a 10-year total estimate for the share
of facilities’ increased staffing costs that
is due to residents utilizing Medicaid.
These estimates exclude all collection of
information costs. Over a 10-year
period, the average annual cost for
facilities’ due to residents whose stay is
VerDate Sep<11>2014
20:37 May 09, 2024
Jkt 262001
paid for by Medicaid is approximately
$2.82 billion. If Medicaid were to fully
cover these costs (although there is no
expectation that it will), then States
would pay approximately $1.17 billion,
and the Federal Government would pay
$1.65 billion.
To build these estimates, we used a
scenario where each facility’s increased
cost to meet the new minimum staffing
and 24/7 RN requirements for residents
utilizing Medicaid is equal to share of
residents in the facility using Medicaid.
More formally, we first calculated each
facility’s increased staffing cost for
residents utilizing Medicaid for each of
PO 00000
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Fmt 4701
Sfmt 4700
40971
the four requirements (24/7 RN, 3.48
total nurse staff, 0.55 RN HPRD, and
2.45 NA HPRD) using the following
formula: Increased Facility Cost for
Medicaid Residents = Individual
requirement cost × % facility residents
covered by Medicaid. We then summed
all facilities’ increased costs that is due
to residents utilizing Medicaid and took
into account the different timeline for
each of the requirements to obtain a
total estimated cost for Medicaid of
$28.17 billion over 10 years.
BILLING CODE 4120–01–P
E:\FR\FM\10MYR3.SGM
10MYR3
khammond on DSKJM1Z7X2PROD with RULES3
40972
Jkt 262001
Frm 00098
Fmt 4701
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2
3
4
5
6
7
8
9
10MYR3
by Medicare and other non-Medicare/
Medicaid payors. These estimates
E:\FR\FM\10MYR3.SGM
facilities’ increased staffing costs that is
due to residents whose care is covered
PO 00000
Yea
r
1
ER10MY24.109</GPH>
10
10
Yea
r
Tot
al
Cos
t
24/7RN
State
Medicaid
Costs
(Rural
Areas)
$0
$0
$60,811,0
00
$62,215,7
34
$63,652,9
17
$65,123,3
00
$66,627,6
48
$68,166,7
47
$69,741,3
99
$71,352,4
25
24/7RN
Federal
Medicaid
Costs
(Urban
Areas)
$0
$81,910,4
52
$83,802,5
84
$85,738,4
24
$87,718,9
81
$89,745,2
90
$91,818,4
06
$93,939,4
11
$96,109,4
11
$98,329,5
39
$0
$67,959,24
1
$69,529,09
9
$71,135,22
2
$72,778,44
5
$74,459,62
7
$76,179,64
5
$77,939,39
5
$79,739,79
5
3.48 Total
Nurse
HPRD
Requireme
nt State
Medicaid
Costs
(Urban
Areas)
$0
$351,968,33
9
$360,098,80
8
$368,417,09
0
$376,927,52
5
$385,634,55
1
$394,542,70
9
$403,656,64
5
$412,981,11
4
$422,520,97
8
$527,691,
169
$809,112,
498
$589,720,4
69
$3,476,747,
758
24/7RN
Federal
Medicaid
Costs
(Rural
Areas)
$0
$0
$35,749,8
26
$36,575,6
47
$37,420,5
45
$38,284,9
59
$39,169,3
42
$40,074,1
54
$40,999,8
67
$41,946,9
63
24/7RN
State
Medicaid
Costs
(Urban
Areas)
$0
$53,154,9
64
$54,382,8
44
$55,639,0
88
$56,924,3
50
$58,239,3
03
$59,584,6
31
$60,961,0
36
$62,369,2
36
$63,809,9
65
$310,221,
303
$525,065,
417
3.48 Total
Nurse
HPRD
Requirem
eut State
Medicaid
Costs
(Rural
Areas)
$0
3.48 Total
Nurse
HPRD
Requirem
ent
Federal
Medicaid
Costs
(Rural
Areas)
$0
0.55RN
and 2.45
NAHPRD
Requireme
nts State
Medicaid
Costs
(Rural
Areas)
$0
0.55RN
and 2.45
NAHPRD
Requireme
nts State
Medicaid
Costs
(Urban
Areas)
$0
0.55RN
and 2.45
NAHPRD
Require me
nts Federal
Medicaid
Costs
(Rural
Areas)
$0
0.55RN
and 2.45
NAHPRD
Requireme
nts Federal
Medicaid
Costs
(Urban
Areas)
$0
$0
$104,952,2
72
$107,376,6
69
$109,857,0
70
$112,394,7
69
$114,991,0
88
$117,647,3
82
$120,365,0
37
$123,145,4
69
3.48 Total
Nurse
HPRD
Requireme
ntFederal
Medicaid
Costs
(Urban
Areas)
$0
$462,098,98
6
$472,773,47
3
$483,694,54
0
$494,867,88
4
$506,299,33
2
$517,994,84
7
$529,960,52
8
$542,202,61
6
$554,727,49
6
$0
$0
$0
$136,832,7
97
$139,993,6
35
$143,227,4
88
$146,536,0
43
$149,921,0
26
$153,384,2
01
$0
$682,438,85
7
$698,203,19
5
$714,331,68
8
$730,832,75
0
$747,714,98
7
$764,987,20
3
$782,658,40
8
$800,737,81
7
$910,729,7
56
$4,564,619,
703
$869,895,1
90
$5,921,904,
905
$0
$0
$231,945,47
4
$237,303,41
4
$242,785,12
3
$248,393,45
9
$254, 131,34
8
$260,001,78
2
$0
$943,625,73
9
$965,423,49
4
$987,724,77
7
$1,010,541,
219
$1,033,884,
721
$1,057,767,
458
$1,082,201,
887
$1,107,200,
750
Total State
Medicaid
Costs
$0
$405,123,30
3
$1,200,629,5
76
$1,228,364,1
19
$1,393,572, 1
27
$1,425,763,6
44
$1,458,698,7
84
$1,492,394,7
26
$1,526,869,0
44
$1,562,139,7
19
Total
Federal
Medicaid
Costs
$0
$544,009,43
9
$1,665,965,0
68
$1,704,448,8
61
$1,975,767,1
03
$2,021,407,3
24
$2,068, IO 1,8
33
$2,115,874,9
85
$2,164,751,6
97
$2,214,757,4
61
$1,474,560,
601
$8,188,370,
045
$11,693,555,
041
$16,475,083,
771
$0
Federal Register / Vol. 89, No. 92 / Friday, May 10, 2024 / Rules and Regulations
20:37 May 09, 2024
Table 24 provides annual estimates
and a 10-year estimate for the share of
VerDate Sep<11>2014
Table 23: Impact of Comprehensive Minimum Nurse Staffing Requirement on Medicaid Spending
Federal Register / Vol. 89, No. 92 / Friday, May 10, 2024 / Rules and Regulations
khammond on DSKJM1Z7X2PROD with RULES3
continue to exclude all collection of
information costs. Over a 10-year
period, facilities’ average annual cost to
meet the proposed requirements will be
approximately $471 million for
residents utilizing Medicare and $921
million for residents utilizing other nonMedicare/Medicaid payors.
To build these estimates, we used a
scenario where the cost each facility
will incur to meet the new minimum
staffing and 24/7 RN requirements for
residents utilizing Medicare is equal to
the share of residents covered by
Medicare and non-Medicare/Medicaid
payors in each facility. More formally,
we first calculated each facility’s
increased staffing cost for residents
VerDate Sep<11>2014
20:37 May 09, 2024
Jkt 262001
utilizing Medicare and other nonMedicare/Medicaid payors for each of
the four requirements (24/7 RN, 3.48
total nurse staff, 0.55 RN HPRD, and
2.45 NA HPRD) using the following
formula: Increased Facility Cost for
Medicare Residents = Individual
requirement cost × % facility residents
covered by Medicare. We then summed
all facilities’ increased costs that is due
to residents utilizing Medicare and took
into account the different timeline for
each of the requirements to obtain a
total estimated cost to facilities for
Medicare-covered SNF stays of $4.71
billion over 10 years.
To obtain the total cost due to
residents utilizing other non-Medicare/
PO 00000
Frm 00099
Fmt 4701
Sfmt 4700
40973
Medicaid payors, we first calculated
each facility’s increased staffing cost for
residents utilizing other non-Medicare/
Medicaid payors for each of the four
requirements (24/7 RN, 3.48 total nurse
staff HPRD, 0.55 RN HPRD, and 2.45 NA
HPRD) using the following formula:
Increased Facility Cost for NonMedicare/Medicaid Payors = Individual
requirement cost × % facility residents
covered by non-Medicare/Medicaid
Payors. We then summed all facilities’
increased costs that is due to residents
utilizing other Non-Medicare/Medicaid
payors and took into account the
different timeline for each of the
requirements to obtain a total estimated
cost of $9.21 billion over 10 years.
E:\FR\FM\10MYR3.SGM
10MYR3
khammond on DSKJM1Z7X2PROD with RULES3
40974
non-Medicare/Medicaid Payors
Jkt 262001
Frm 00100
Fmt 4701
Sfmt 4700
10MYR3
Nurse Staffing HPRD, 0.55 RN and 2.45
NA HPRD requirements include:
E:\FR\FM\10MYR3.SGM
Sources of uncertainty about the cost
estimate for the 24/7 RN, 3.48 Total
PO 00000
0.55RN
and2.45
NAHPRD
Requirem
ents
Medicare
Costs
(Rural
Facilities)
0.55RN
and 2.45
NAHPRD
Require me
nts
Medicare
Costs
(Urban
Facilities)
Medicaid
Payors'
Costs
(Rural
Facilities)
$0
$0
$0
$0
$0
8
$0
$305,704,6
01
$312,766,3
77
$319,991,2
80
$327,383,0
79
$334,945,6
28
$342,682,8
72
$350,598,8
46
$358,697,6
80
$0
$34,221,9
40
$35,012,4
67
$35,821,2
55
$36,648,7
26
$37,495,3
12
$38,361,4
53
$39,247,6
03
$40,154,2
23
$0
$48,465,7
32
$49,585,2
90
$50,730,7
10
$51,902,5
90
$53,101,5
40
$54,328,1
85
$55,583,1
66
$56,867,1
38
$58,180,7
68
$385,424,6
30
$2,652,770,
364
$296,962,
980
$478,745,
120
Ye
ar
I
$0
2
$0
$12,537,9
08
$12,827,5
33
$13,123,8
49
$13,427,0
IO
$13,737,1
74
$14,054,5
03
$14,379,1
62
$14,711,3
21
$0
$25,668,9
03
$26,261,8
55
$26,868,5
04
$27,489,1
66
$28,124,1
66
$28,773,8
34
$29,438,5
IO
$30,118,5
40
$30,814,2
78
$0
$25,809,6
65
$26,405,8
68
$27,015,8
43
$27,639,9
09
$28,278,3
91
$28,931,6
22
$29,599,9
43
$30,283,7
01
$0
$110,056,3
37
$112,598,6
39
$115,199,6
67
$117,860,7
79
$120,583,3
63
$123,368,8
39
$126,218,6
59
$129,134,3
IO
$132,117,3
13
$108,798,
460
$253,557,
757
$223,964,
943
$1,087,137,
907
5
6
7
8
ER10MY24.110</GPH>
3.48 Total
Nurse
HPRD
Require me
nt
Medicare
Costs
(Urban
Facilities)
24/7 RN
Medicare
Costs
(Urban
Facilities)
4
9
IO
Tot
al
IO
Yea
r
Cos
t
24/7RN
Other
NonMedicare
/ or
Medicaid
Payors'
Costs
(Urban
Facilities)
3.48 Total
Nurse
HPRD
Requirem
ent
Medicare
Costs
(Rural
Facilities)
24/7 RN
Medicare
Costs
(Rural
Facilities)
3
24/7RN
Other
NonMedicare
$0
$0
$60,626,53
4
$62,027,00
7
$63,459,83
1
$64,925,75
3
$66,425,53
8
$67,959,96
I
Other NonMedicare/Med
icaid Payors'
3.48 Total
NurseHPRD
Requirement
Costs (Rural
Facilities)
Other NonMedicare/Med
icaid Payors'
3.48 Total
NurseHPRD
Requirement
Costs (Urban
Facilities)
NonMedicare
or
Medicaid
Payors'
0.55RN
and 2.45
NAHPRD
Requirem
ents Costs
(Rural
Facilities)
$0
$0
$0
$0
$0
$226,153,246
$0
$54,428,846
$231,377,386
$0
$55,686,153
$236,722,204
$56,972,503
$242,190,486
$58,288,568
$247,785,087
$0
$114,509,5
44
$117,154,7
14
$119,860,9
$59,635,033
$253,508,922
88
$61,012,603
$259,364,978
$62 421 994
$265 356 309
$63,863,942
$271,486,040
$122,629,7
77
$125,462,5
25
$128,360,7
09
$472,309,641
$2,233,944,658
$727,978,2
57
NonMedicare
or
Medicaid
Payors'
0.55RN
aud 2.45
NAHPRD
Requireme
nts Costs
(Urban
Facilities)
Total
Costs Due
to
Residents
whose Stay
is Covered
by
Medicare
Total
Costs Due
to
Residents
whose Stay
is Covered
by Other
nonMedicare/
Medicaid
Payors
$0
$575,820,7
09
$589,122,1
68
$602,730,8
90
$616,653,9
73
$630,898,6
80
$645,472,4
40
$660,382,8
53
$675,637,6
97
$0
$135,725,2
41
$482,912,6
67
$494,067,9
49
$566,107,4
53
$579,184,5
35
$592,563,6
98
$606,251,9
19
$620,256,3
39
$634,584,2
60
$0
$274,618,9
78
$945,434,1
72
$967,273,7
02
$1,104,127,
268
$1,129,632,
608
$1,155,727,
121
$1,182,424,
417
$1,209,738,
421
$1,237,683,
379
$4,996,719,
410
$4,711,654,
062
$9,206,660,
066
Federal Register / Vol. 89, No. 92 / Friday, May 10, 2024 / Rules and Regulations
20:37 May 09, 2024
BILLING CODE 4120–01–C
VerDate Sep<11>2014
Table 24: Cost of Comprehensive Minimum Nurse Staffing Requirement due to Residents whose Stay is Covered by Medicare and Other
Federal Register / Vol. 89, No. 92 / Friday, May 10, 2024 / Rules and Regulations
khammond on DSKJM1Z7X2PROD with RULES3
The cost estimates assumed that LTC
facilities needing RNs and/or NAs to
meet these requirements will hire them
without laying off other direct care or
support staff. Some research,115 116
however, has found that when States
implemented minimum hour per day
requirements for direct care staff (RNs,
LPNs, and NAs), LTC facilities
responded by reducing indirect care
staff, such as housekeeping, food
service, and activities staff. If LTC
facilities respond to the 24/7 RN, 3.48
total nurse staff HPRD, 0.55 RN HPRD,
and 2.45 NA HPRD requirements in
similar ways, then a facility’s total cost
for the requirements could decline
significantly relative to what was
presented above (see earlier discussion
about appropriate accounting of costs
depending on consistency between
benefit and cost analytic approaches).
The intent of this rule, however, is that
facilities will maintain levels of indirect
care staff necessary to meet their
residents’ needs, while also scaling up
direct care staff if needed to meet the
minimums.
The cost estimates assumed that real
wages for RNs and NAs will grow at a
real annual rate of 2.31 percent due to
increasing demand for these direct care
staff. Differences in demand for RNs and
NAs across geographical areas, however,
could lead to wages in different areas to
increase at different rates, altering the
cost for LTC facilities.
The cost estimates assumed that the
nursing home resident population will
remain stable over the next 10 years.
There is some evidence, however, that
the resident population is declining.
CMS Care Compare data shows that
between February 2017 and February
2024, the average number of residents in
nursing homes per day declined from
1,346,712 residents to 1,207,726.117 If
the resident population continues to
decrease, then the costs could be lower
than what we have estimated. Similarly,
if the pattern changes and the nursing
home resident population increases,
costs could be higher than what we have
estimated.
115 Thomas, Kali S., Kathryn Hyer, Ross Andel,
and Robert Weech-Maldonado. The Unintended
Consequences of Staffing Mandates in Florida
Nursing Homes: Impacts on Indirect-Care Staff,
2010, Medicare Care Research and Review, Volume
67, Issue 5, Pages 555–573.
116 Bowblis, John R., and Kathryn Hyer. Nursing
Home Staffing Requirements and Input
Substitution: Effects on Housekeeping, Food
Service, and Activities Staff, 2013, Health Services
Research, Volume 48, Issue 4, Pages: 1539–1550.
117 CMS. (2024). Nursing homes including rehab
services archived data snapshots. Accessed March
19, 2024. Available at: https://data.cms.gov/
provider-data/archived-data/nursing-homes.
VerDate Sep<11>2014
20:37 May 09, 2024
Jkt 262001
The 24/7 RN cost estimate assumed
that RNs hired to meet the requirement
will make the loaded average hourly
rate for RNs in the facility. If, however,
LTC facilities need to hire RNs to work
overnight shifts, which typically
command a higher hourly rate, the costs
for LTC facilities to meet this
requirement could increase.
The cost estimate for the 3.48 total
nurse staff requirement assumes that
facilities will hire NAs to fill the
necessary hours. If, however, they hire
LPNs/LVNs, then the cost could
increase since LPNs/LVNs command a
higher hourly wage than NAs.
The cost estimate assumed that no
LTC facilities will obtain exemptions
from the 24/7 RN requirement, the 3.48
total nurse staffing HPRD requirement,
or the 0.55 RN and 2.45 NA HPRD
requirements, although some facilities
could obtain exemptions. Depending on
the number of facilities that obtain
exemptions from the requirements and
their expected cost to meet the
requirements, the total cost of the rule
for LTC facilities could be lower than
what is estimated.
In addition to uncertainty about the
magnitude of costs, there is uncertainty
about whether LTC facilities or other
payors would bear the cost of meeting
the minimum staffing and 24/7 RN
requirements. As we highlighted earlier
in this RIA, we expect that LTC facilities
would generally have 3 possible
approaches to addressing the increased
costs associated with the higher staffing
levels: (1) reduce their margin or profit;
(2) reduce other operational costs; and
(3) increase prices charged to payors.
LTC facilities may use some
combination of these approaches, and
those approaches could vary by facility
and over time. These decisions could
depend on a number of factors,
including: the current margin levels of
a facility; the cost increase due to the
staffing requirements relative to current
costs and revenues; the current level of
operational costs; and the ability to
negotiate prices with payors. If payors
did increase payment rates to meet some
or all the rule’s cost, the cost for LTC
facilities could be lower relative to what
is estimated above.
(4). Impact of 3.48 Total Nurse Staff,
0.55 RN, and 2.45 NA HPRD
Requirements on States
To provide a more in-depth
understanding of the financial and
staffing effects of the 3.48 total nurse
staff HPRD, 0.55 RN HPRD, and 2.45 NA
HPRD minimum staffing requirements,
we examined their impact on different
groups of LTC facilities in each State, as
well as Washington, DC, and Puerto
PO 00000
Frm 00101
Fmt 4701
Sfmt 4700
40975
Rico. We first assessed how many fulltime employees LTC facilities will need
to hire to meet the finalized
requirements. In this analysis, we
defined a full-time employee as an
employee who worked 1,950 hours per
year. This definition was based on a
full-time employee working 5 days per
week, 8 hours per day, with a 30-minute
break (37.5 hours/week × 52 weeks/
year).
We continued to assume that no
facilities will obtain exemptions from
these minimum staffing requirements.
For the 3.48 total nurse staff HPRD
requirement, we continued to subtract
any costs that facilities will incur and
employees they will need to meet the
24/7 RN requirement since RNs that
facilities hire to meet the 24/7 RN
requirement will also count toward the
3.48 total nurse staff HPRD requirement.
For the 0.55 RN HPRD requirement, we
continue to subtract any costs that
facilities will incur and employees they
will need to hire to meet the 24/7 RN
requirements since RNs that facilities
hire for the 24/7 RN requirement will
also count toward the 0.55 RN HPRD
requirement. Finally, for the 2.45 NA
HPRD requirement, we continue to
subtract any NAs hired to meet the 3.48
total nurse staff requirement since NAs
that facilities hire for the 3.48 total
nurse staff requirement will also count
toward the 2.45 NA HPRD requirement.
All calculations used the October 2021
Care Compare data set that provided
each LTC facility’s average daily
resident census and average HPRD for
RNs, LPNs/LVNs and NAs using the PBJ
System data from 2021 Q2.For each
facility, we first calculated the total
number of full-time RNs, LPN/LVNs,
and NAs working in a facility using the
following formula: (facility specific care
type HPRD × Average daily resident
census × 365)/1,950. For example, if a
facility has 10 residents and provides an
average of 0.1 RN HPRD, then during
the year, it will provide a total of 365
hours of RN care (0.1 RN HPRD × 10
residents × 365 days) yearly and have
0.187 full-time RNs. We then calculated
the number of additional RNs needed by
subtracting the current average hours
per resident day for RNs from the
minimum required RN hours per
resident day. Continuing with our
example in this section and assuming
the facility did not need to hire any RNs
to meet the 24/7 RN requirement, the
LTC facility would need to provide
1,642.5 additional RN hours per year
([0.55 RN HPRD ¥ 0.1 HPRD] × 10
residents × 365 days = 1642.5 hours)
and hire 0.84 additional full-time RNs.
To calculate the total number of
additional NAs needed to meet the 3.48
E:\FR\FM\10MYR3.SGM
10MYR3
40976
Federal Register / Vol. 89, No. 92 / Friday, May 10, 2024 / Rules and Regulations
khammond on DSKJM1Z7X2PROD with RULES3
total nurse staff requirement, we
subtracted the current average hours per
resident day for all nurse staff (RNs,
LPNs/LVNs, and NAs) from the
minimum required hours per resident
day. For example, if the same facility as
previously mentioned with 10 residents
provided an average of 2.2 NA HPRD,
0.187 RN HPRD, and no LPN/LVN
HPRD, then to meet the 3.48 HPRD
requirement it would need to provide
3,989.5 additional NA hours per year
([3.48 Total Nurse Staff HPRD¥2.2 NA
HPRD¥.187 RN HPRD] × 10 residents ×
365 days = 3,989.5 hours) and hire 2.05
(3,989.5 hours needed/1,950 hours
yearly per full-time employee) full-time
NAs. This equals an average increase of
1.09 NA HPRD (3,989.5/10 residents/
365 days = 1.09 HPRD). We note,
however, that facilities may also wish to
use other types of staff such as LPNs/
LVNs to meet the total staffing standard.
Finally, to calculate the total number
of additional NAs needed to meet the
2.45 NA HPRD requirement, we added
together the current average hours per
resident day for NAs and the average
additional hours per resident day that
NAs will work to meet the 3.48 total
nurse staff requirement. We then
subtracted this new total NA HPRD from
the 2.45 NA HPRD minimum required
hours per resident day. For example, the
VerDate Sep<11>2014
20:37 May 09, 2024
Jkt 262001
same facility that we discussed above
would provide a total of 3.29 NA HPRD
(2.2 HPRD from current average NA
HPRD + 1.09 HPRD from the 3.48 total
nurse staff requirement = 3.29 NA
HPRD). Therefore, it would have already
met the 2.45 NA HPRD requirement and
would incur no additional costs and
would not need to hire any NAs to meet
the 2.45 NA HPRD requirement.
Table 25 shows the total number of
RNs and NAs employed by LTC
facilities in each State’s urban areas, the
number of full-time RNs and NAs that
LTC facilities will need to hire to meet
each requirement, and the percent
increase in RNs and NAs that LTC
facilities in each State will need to meet
the proposed minimum staffing
standards. Table 26 provides the same
information for LTC facilities located in
each State’s rural areas.
Louisiana will need the largest
increase in RNs in percentage terms.
The number of full-time RNs in urban
LTC facilities will need to increase by
nearly 96 percent, while rural LTCs will
need to increase the number of RNs by
more than 73 percent to meet minimum
standard. Facilities in Texas will need
to hire the most overall RNs with the
State needing 1,615 additional full-time
RNs in urban areas and more than 311
RNs in rural areas. Across the United
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Sfmt 4700
States, however, the number of RNs that
facilities will need to hire varies widely,
with several States, including Delaware
and Hawaii, not needing to hire any RNs
to meet the requirement.
Illinois will need the largest
percentage increase for NAs in urban
areas to meet the 3.48 total nurse staff
requirement. The State will need to add
4,350 full-time NAs and increase the
overall number of NAs working in LTC
facilities by more than 31 percent.
Similar to RNs, however, there is wide
variation in the percentage increase in
NAs needed for the 3.48 total nurse staff
requirement across States. For example,
Alaska, North Dakota, the District of
Columbia, Delaware, Florida, Hawaii,
Idaho, Florida, Maine, and Vermont,
will need to increase the size of their
NA labor force in urban LTC facilities
by less than 1 percent to meet the
requirement.
Delaware will need the largest
percentage increase for NA in urban
areas to meet the 2.45 NA HPRD
requirement, increasing the number of
NAs by 18.3 percent. For rural areas,
Georgia will need the largest percentage
increase at 19.5 percent. Across States,
however, the number of NAs that
facilities will need to hire continues to
vary widely.
BILLING CODE 4120–01–P
E:\FR\FM\10MYR3.SGM
10MYR3
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Table 25: Current and Additional Full-Time RNs and NAs Needed per State To Meet 3.48 Total Nurse Staff, 0.55 RN, and 2.45 NA HPRD
Jkt 262001
State
Existing
Full-Time
RNs
Additional RNs
Needed for 0.55
RNHPRD
Requirement
% Increase in
RNs for 0.55
RNHPRD
Requirement
Existing
Full-Time
CNAs
Additional NAs
Needed for 3.48
Total Nurse
StaffHPRD
Requirement
% Increase in NAs
for 3.48 Total
Nurse Staff
Requirement
Additional NAs
Needed for 2.45
NAHPRD
Requirement
% Increase in
NAs for2.45
NAHPRD
Requirement
Alabama
1,416
129
9.1
5,011
378
7.5
545
10.9
PO 00000
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Fmt 4701
Alaska
108
0
0.0
216
0
0.0
3
1.2
Arizona
1,247
101
8.1
4,036
137
3.4
514
12.7
Arkansas
559
220
39.3
3,775
51
1.3
151
4.0
California
9,461
1,390
14.7
40,659
580
1.4
1,221
3.0
Colorado
2,026
9
0.5
4,687
219
4.7
502
10.7
Connecticut
2,145
122
5.7
6,735
446
6.6
693
10.3
Sfmt 4725
E:\FR\FM\10MYR3.SGM
Delaware
648
0
0.0
1,376
7
0.5
252
18.3
District of Columbia
468
0
0.0
923
0
0.0
45
4.9
Florida
8,208
390
4.8
29,310
143
0.5
278
0.9
Georgia
1,469
443
30.1
6,446
921
14.3
1,085
16.8
Hawaii
743
0
0.0
1,289
3
0.2
26
2.0
Idaho
437
1
0.2
1,176
6
0.6
99
8.4
10MYR3
Illinois
5,965
551
9.2
13,944
4,350
31.2
1,852
13.3
Indiana
2,611
261
10.0
8,917
878
9.8
1,226
13.8
Iowa
1,254
28
2.2
4,010
228
5.7
154
3.8
Kansas
Kentucky
1,054
51
4.8
3,652
212
5.8
175
4.8
1,249
100
8.0
3,997
252
6.3
535
13.4
Louisiana
762
730
95.9
6,306
560
8.9
676
10.7
Maine
576
3
0.5
1,499
2
0.2
34
2.3
Maryland
2,939
47
1.6
7,572
346
4.6
1,242
16.4
Massachusetts
3,973
191
4.8
12 156
413
3.4
1,772
14.6
Michigan
3,050
235
7.7
8,862
734
8.3
1,538
17.4
Minnesota
Mississippi
2,968
3
0.1
6,267
187
3.0
404
6.4
509
68
13.3
1,955
103
5.3
219
11.2
Federal Register / Vol. 89, No. 92 / Friday, May 10, 2024 / Rules and Regulations
20:37 May 09, 2024
Staffing Requirements for Urban LTC Facilities
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Existing
Full-Time
RNs
Additional RNs
Needed for 0.55
RNHPRD
Requirement
% Increase in
RNs for 0.55
RNHPRD
Requirement
Existing
Full-Time
CNAs
Additional NAs
Needed for 3.48
Total Nurse
StaffHPRD
Requirement
% Increase in NAs
for 3.48 Total
Nurse Staff
Requirement
Additional NAs
Needed for 2.45
NAHPRD
Requirement
% Increase in
NAs forl.45
NAHPRD
Requirement
Missouri
l.707
442
25.9
7,786
Montana
163
4
2.2
487
1.314
16.9
353
4.5
60
12.3
34
Nebraska
743
17
2.3
2,313
7.0
87
3.8
64
2.8
13.7
PO 00000
Nevada
667
45
6.7
1,796
86
4.8
247
New Hampshire
388
13
3.4
1,256
48
3.8
126
10.1
New Jersey
4,756
335
7.0
13,412
1,087
8.1
1,800
13.4
Frm 00104
New Mexico
324
27
8.2
1,184
107
9.1
90
7.6
New York
10,277
745
7.2
32,047
3,406
10.6
2,726
8.5
North Carolina
2,381
376
15.8
9,175
825
9.0
988
10.8
Fmt 4701
North Dakota
313
1
0.4
1,176
5
0.4
7
0.6
Ohio
5,169
521
10.1
16,844
1,965
11.7
2,628
15.6
Oklahoma
568
203
35.7
3,725
108
2.9
232
6.2
Sfmt 4725
Oregon
762
17
2.3
3,170
5
0.2
9
0.3
Pennsylvania
7,575
242
3.2
20 086
1,669
8.3
3,255
16.2
Puerto Rico
29
0
0.0
0
0
--
26
--
E:\FR\FM\10MYR3.SGM
Rhode Island
947
14
1.5
2,752
133
4.8
156
5.7
South Carolina
1,325
163
12.3
4,793
236
4.9
558
11.6
South Dakota
240
0
0.0
618
39
6.2
51
8.3
10MYR3
Tennessee
1,693
230
13.6
6,047
431
7.1
1,068
17.7
Texas
4,451
1,615
36.3
21,663
2,661
12.3
3,460
16.0
Utah
926
2
0.2
2,012
87
4.3
115
5.7
Vermont
Virginia
72
4
5.0
239
0
0.0
24
10.1
1,951
344
17.6
6,838
1,082
15.8
1,082
15.8
Washington
1,967
22
1.1
5,257
47
0.9
264
5.0
West Virginia
682
22
3.2
1,987
117
5.9
313
15.8
Wisconsin
Wvoming
2,214
16
0.7
5,220
257
4.9
363
7.0
85
3
3.4
212
24
11.3
27
12.6
United States
108,220
10,495
9.7
356,871
27,042
7.6
35,306
9.9
Federal Register / Vol. 89, No. 92 / Friday, May 10, 2024 / Rules and Regulations
20:37 May 09, 2024
ER10MY24.112</GPH>
State
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E:\FR\FM\10MYR3.SGM
10MYR3
Existing
FullTime
RNs
Additional RNs
Needed for 0.55
RNHPRD
Requirement
Alabama
Alaska
Arizona
Arkansas
California
Colorado
Connecticut
Delaware
District of Columbia
Florida
Georgia
Hawaii
Idaho
Illinois
Indiana
Iowa
Kansas
Kentuckv
Louisiana
Maine
Maryland
Massachusetts
Michigan
Minnesota
Mississippi
Missouri
Montana
Nebraska
Nevada
New Hampshire
721
108
60
487
150
374
118
0
0
286
732
177
163
1,049
1,147
1,458
862
1,212
262
403
125
12
1,299
1,218
982
823
356
630
61
349
69
0
4
115
37
6
6
0
0
51
177
0
1
85
51
29
10
70
192
0
0
0
19
1
70
133
5
13
0
8
% Increase
in RNs for
0.55RN
HPRD
Requirement
9.5
0.0
6.4
23.6
24.5
1.5
4.6
--17.9
24.2
0.0
0.6
8.1
4.5
2.0
1.1
5.8
73.4
0.0
0.0
0.0
1.5
0.1
7.1
16.2
1.5
2.1
0.0
2.4
Existing
FullTime
CNAs
2,884
256
169
2,930
847
1,080
379
0
0
1,501
3,147
393
542
3,519
3,510
4,789
3,224
4,011
2,166
1,151
353
40
3,624
3,417
3,544
3,959
996
2,380
189
1,206
Additional NAs
Needed for 3.48
Total Nurse Staff
HPRD
Requirement
135
0
29
22
7
34
16
0
0
5
341
5
4
688
274
318
59
191
65
0
15
0
105
14
108
541
85
43
14
57
% Increase in
NAs for 3.48
Total Nurse
Staff
Requirement
4.7
0.0
17.1
0.8
0.8
3.1
4.3
--0.4
10.8
1.3
0.8
19.6
7.8
6.6
1.8
4.8
3.0
0.0
4.2
0.0
2.9
0.4
3.0
13.7
8.5
1.8
7.6
4.7
Additional NAs
Needed for 2.45
NAHPRD
Requirement
% Increase in
NAs for2.45
NAHPRD
Requirement
148
0
31
137
25
59
52
0
0
18
614
28
16
308
472
236
77
358
218
5
29
0
169
99
408
175
43
86
8
78
5.1
0.0
18.2
4.7
3.0
5.5
13.8
--1.2
19.5
7.2
3.0
8.8
13.5
4.9
2.4
8.9
10.1
0.4
8.3
0.0
4.7
2.9
11.5
4.4
4.3
3.6
4.5
6.5
40979
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20:37 May 09, 2024
ER10MY24.113</GPH>
Table 26: Current and Additional Full-Time RNs and NAs Needed per State To Meet 3.48 Total Nurse Staff, 0.55 RN, and 2.45 NA HPRD
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10MYR3
estimate the yearly cost per State, we
used the formulas described in section
E:\FR\FM\10MYR3.SGM
nurse staff, 0.55 RN, and 2.45 NA HPRD
minimum staffing requirements. To
PO 00000
Existing
FullTime
RNs
Additional RNs
Needed for 0.55
RNHPRD
Requirement
New Jersey
New Mexico
New York
North Carolina
North Dakota
Ohio
Oklahoma
Oregon
Pennsylvania
Puerto Rico
Rhode Island
South Carolina
South Dakota
Tennessee
Texas
Utah
Vermont
Virginia
Washington
West Virginia
Wisconsin
Wvoming
United States
0
256
827
800
386
1,681
437
158
1,026
0
0
279
488
683
1,138
122
250
574
193
399
1,142
245
26,708
0
7
37
92
6
109
94
2
50
0
0
62
2
78
311
0
2
99
5
32
4
0
2,144
% Increase
in RNs for
0.55RN
HPRD
Requirement
Existing
FullTime
CNAs
--
0
796
2,609
2,945
1,331
5,264
3,040
528
3,152
0
0
1,121
1,382
2,515
6,143
269
734
1,990
535
1,464
2,835
626
95,485
2.5
4.5
11.5
1.7
6.5
21.4
1.1
4.9
--
-22.4
0.5
11.4
27.3
0.0
0.8
17.3
2.5
8.0
0.3
0.0
8.0
Additional NAs
Needed for 3.48
Total Nurse Staff
HPRD
Requirement
0
40
433
267
46
580
81
0
211
0
0
88
109
123
699
11
10
311
37
86
155
8
6,476
% Increase in
NAs for3.48
Total Nurse
Staff
Requirement
Additional NAs
Needed for 2.45
NAHPRD
Requirement
--
0
56
392
298
19
824
124
0
547
0
0
163
55
480
1,067
19
80
340
46
137
187
57
8,787
5.0
16.6
9.1
3.4
11.0
2.7
0.0
6.7
--
-7.9
7.9
4.9
11.4
4.2
1.4
15.6
7.0
5.9
5.5
1.2
6.8
% Increase in
NAs for 2.45
NAHPRD
Requirement
-7.0
15.0
IO.I
1.4
15.7
4.1
0.0
17.3
--
-14.5
4.0
19.1
17.4
7.1
10.9
17.1
8.6
9.3
6.6
9.1
9.2
Federal Register / Vol. 89, No. 92 / Friday, May 10, 2024 / Rules and Regulations
20:37 May 09, 2024
We then assessed the financial cost
for facilities to implement the 3.48 total
VerDate Sep<11>2014
ER10MY24.114</GPH>
State
Federal Register / Vol. 89, No. 92 / Friday, May 10, 2024 / Rules and Regulations
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VI.C.1.(a) to first estimate each facility’s
yearly cost to meet each requirement.
We also assumed that LTC facilities
exceeding the minimum requirements
for total nurse staff, RNs and/or NAs
will not reduce staff to the minimum
required level or lay off other staff to
reduce costs. We then calculated the
average cost per resident day by
summing the total cost of meeting each
requirement for all facilities in the State
and dividing it by the total number of
resident days for all facilities in the state
needing to hire staff to meet the
requirements. We estimated the average
VerDate Sep<11>2014
20:37 May 09, 2024
Jkt 262001
cost per resident day only for facilities
needing staff to provide a more
complete picture of the burden that the
rule will impose on these facilities.
Table 27 provides the yearly
Statewide cost to implement the 3.48
total nurse staff, 2.45 NA, and 0.55 RN
HPRD requirements, as well as the
average cost per resident day for
facilities in rural and urban areas that
will need to hire staff to meet the
requirements. Facilities in Illinois that
are not meeting the minimum staffing
standards will need to spend the most
with an average cost of $21.01 per
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Sfmt 4700
40981
resident day. The highest overall cost
occurs in New York where facilities will
need to collectively spend nearly $421
million to meet the minimum staffing
requirements. The cost also varies
across urban and rural areas. In Illinois,
LTC facilities in urban areas that need
staff will need to spend an average of
$22.34 per resident day to meet the
requirement, while in Florida, they will
need to spend than $5.25 per resident
day. Virginia had the highest average
cost for rural LTC facilities at $17.65 per
resident day.
E:\FR\FM\10MYR3.SGM
10MYR3
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E:\FR\FM\10MYR3.SGM
10MYR3
Alabama
Alaska
Arizona
Arkansas
California
Colorado
Connecticut
Delaware
District of Columbia
Florida
Georgia
Hawaii
Idaho
Illinois
Indiana
Iowa
Kansas
Kentuckv
Louisiana
Maine
Maryland
Massachusetts
Michigan
Minnesota
Mississippi
Missouri
Montana
Nebraska
Nevada
New Hampshire
New Jersey
New Mexico
New York
Statewide
Hiring Cost
($ Million)
Average Cost per
Resident Day
(Statewide)
Urban LTC Facilities
Needing Staff
Average Cost per
Resident Day
(Urban Areas)
RuralLTC
Facilities Needing
Staff
Average Cost per
Resident Day
(Rural Areas)
57.7
0.1
35.8
34.0
225.6
37.7
63.5
12.0
1.9
54.6
154.5
2.7
5.3
364.0
151.2
42.4
25.9
67.7
118.2
2.4
77.5
125.5
128.9
34.4
38.4
125.4
l0.8
13.4
18.5
19.1
164.7
15.6
421.0
$10.06
$7.50
$12.07
$7.42
$9.68
$10.24
$12.07
$11.18
$6.33
$5.35
$16.30
$9.61
$6.95
$21.01
$14.05
$9.27
$9.40
$11.11
$15.60
$5.89
$12.02
$12.59
$14.82
$10.33
$9.49
$13.68
$14.31
$8.81
$14.06
$14.06
$14.87
$11.02
$15.09
120
1
99
103
724
122
140
36
7
271
201
5
29
412
307
97
89
111
175
12
167
306
250
109
54
233
13
26
34
27
285
29
430
$10.60
$7.50
$12.06
$8.00
$9.71
$10.32
$12.28
$11.18
$6.33
$5.25
$17.lO
$8.38
$7.38
$22.34
$14.77
$9.52
$10.72
$13.22
$16.76
$7.17
$12.15
$12.59
$15.80
$11.13
$10.95
$15.15
$15.02
$10.39
$13.96
$13.38
$14.87
$11.47
$15.03
57
0
8
80
26
26
12
0
0
22
125
3
11
155
151
174
58
1 lO
70
4
10
0
68
49
103
144
27
58
4
19
0
22
72
$8.83
$0.00
$12.17
$6.58
$8.48
$9.65
$9.14
$0.00
$0.00
$6.48
$14.69
$10.84
$5.32
$14.94
$12.15
$9.lO
$6.55
$8.73
$12.lO
$2.02
$8.64
$0.00
$9.55
$7.58
$8.62
$10.48
$13.80
$7.63
$15.92
$15.04
$0.00
$10.04
$15.65
Federal Register / Vol. 89, No. 92 / Friday, May 10, 2024 / Rules and Regulations
20:37 May 09, 2024
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Table 27: LTC Facilities in Each State Needing Staff and Average Cost per Resident Day by Rural and Urban Location
khammond on DSKJM1Z7X2PROD with RULES3
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10MYR3
Average Cost per
Resident Day
(Statewide)
Urban LTC Facilities
Needing Staff
Average Cost per
Resident Day
(Urban Areas)
RuralLTC
Facilities Needing
Staff
Average Cost per
Resident Day
(Rural Areas)
128.3
4.5
289.7
41.1
2.8
298.2
0.0
16.3
59.4
11.2
101.9
408.7
7.6
6.3
156.8
23.4
30.1
41.3
6.2
4,284.2
$13.15
$12.40
$14.79
$9.26
$4.91
$14.98
$0.0
$9.99
$12.63
$10.15
$13.12
$15.40
$6.50
$10.75
$19.30
$10.28
$10.88
$11.26
$13.06
$13.83
256
5
577
108
26
470
3
53
113
21
181
773
49
4
179
78
59
114
6
8,096
$13.50
$7.81
$15.30
$10.70
$4.76
$15.21
$0.0
$9.99
$12.40
$10.03
$13.71
$15.96
$6.50
$12.28
$19.81
$9.40
$11.00
$11.82
$14.37
$13.86
87
15
227
96
1
101
0
0
35
44
100
303
8
16
63
15
44
75
13
2,911
$12.03
$13.98
$13.16
$7.17
$8.28
$13.56
$0.0
$0.00
$13.41
$10.22
$11.77
$13.47
$6.52
$10.28
$17.65
$15.54
$10.68
$10.31
$12.02
$11.59
40983
groups: less than 50 beds, 50 to 100
beds, and more than 100 beds. Within
E:\FR\FM\10MYR3.SGM
that need additional staff, dividing
facilities based on their size into three
PO 00000
North Carolina
North Dakota
Ohio
Oklahoma
Oregon
Pennsvlvania
Puerto Rico
Rhode Island
South Carolina
South Dakota
Tennessee
Texas
Utah
Vermont
Virginia
Washington
West Virginia
Wisconsin
Wyoming
United States
Statewide
Hiring Cost
($ Million)
Federal Register / Vol. 89, No. 92 / Friday, May 10, 2024 / Rules and Regulations
20:37 May 09, 2024
Table 28 shows the average cost per
resident day for facilities in each State
VerDate Sep<11>2014
ER10MY24.116</GPH>
State
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each group of LTC facilities, the cost
varied widely by the number of beds
and State. In Oklahoma, the average cost
per resident day for facilities that have
fewer than 50 beds and need additional
nurse will be $1.84, while in Illinois,
the average cost per resident day for
facilities with more than 100 beds will
be $22.78.
Table 28: Number of L TC Facilities in Each State Needing to Hire Nursing Staff and
LTC
Facilities
Needing
Staff
Statewide
Hiring Cost
($ Million)
Average Cost
per Resident
Day
(Statewide)
Cost<50 Beds
Cost50 to 100
Beds
Cost>100
Beds
177
57.7
$10.06
$5.60
$8.70
$10.52
Alaska
1
0.1
$7.50
$0.00
$7.50
$0.00
Arizona
107
35.8
$12.07
$11.89
$7.44
$13.24
State
Alabama
Arkansas
183
34.0
$7.42
$0.00
$7.42
$7.42
California
750
225.6
$9.68
$5.33
$9.23
$10.25
Colorado
148
37.7
$10.24
$10.94
$9.34
$10.76
Connecticut
152
63.5
$12.07
$19.07
$10.35
$12.38
Delaware
36
12.0
$11.18
$7.15
$7.38
$11.94
District of Columbia
7
1.9
$6.33
$3.88
$18.10
$4.45
Florida
293
54.6
$5.35
$7.69
$5.79
$5.25
Georgia
326
154.5
$16.30
$10.12
$14.78
$17.23
khammond on DSKJM1Z7X2PROD with RULES3
Hawaii
8
2.7
$9.61
$8.73
$14.83
$8.42
Idaho
40
5.3
$6.95
$5.52
$7.80
$6.43
Illinois
567
364.0
$21.01
$8.86
$14.86
$22.78
Indiana
458
151.2
$14.05
$14.24
$12.93
$14.85
Iowa
271
42.4
$9.27
$8.91
$9.09
$10.15
Kansas
147
25.9
$9.40
$8.70
$8.67
$11.26
Kentucky
221
67.7
$11.11
$9.16
$11.13
$11.16
Louisiana
245
118.2
$15.60
$4.91
$10.11
$16.54
Maine
16
2.4
$5.89
$0.00
$6.38
$4.78
Maryland
177
77.5
$12.02
$6.97
$9.83
$12.44
Massachusetts
Michigan
306
125.5
$12.59
$11.71
$11.40
$12.84
318
128.9
$14.82
$12.36
$12.54
$16.00
Minnesota
158
34.4
$10.33
$10.30
$10.33
$10.34
Mississinni
157
38.4
$9.49
$12.76
$7.99
$10.45
Missouri
377
125.4
$13.68
$6.62
$10.08
$15.68
Montana
40
10.8
$14.31
$16.03
$17.84
$10.77
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20:37 May 09, 2024
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10MYR3
ER10MY24.117</GPH>
Average Cost per Resident Day by Facility Size
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Federal Register / Vol. 89, No. 92 / Friday, May 10, 2024 / Rules and Regulations
Average Cost
per Resident
Day
(Statewide)
Cost<50 Beds
Cost50 to 100
Beds
Cost>100
Beds
13.4
$8.81
$8.13
$7.39
$11.48
18.5
$14.06
$6.79
$9.47
$15.33
46
19.1
$14.06
$4.31
$13.58
$14.62
285
164.7
$14.87
$10.34
$11.22
$15.13
LTC
Facilities
Needing
Staff
Statewide
Hiring Cost
($ Million)
Nebraska
84
Nevada
New Hampshire
38
New Jersey
New Mexico
51
15.6
$11.02
$10.24
$11.04
$11.03
New York
502
421.0
$15.09
$9.47
$17.42
$14.95
North Carolina
343
128.3
$13.15
$11.27
$11.72
$13.99
North Dakota
20
4.5
$12.40
$9.93
$5.47
$19.27
Ohio
804
289.7
$14.79
$11.28
$13.80
$16.37
Oklahoma
204
41.1
$9.26
$1.84
$5.59
$11.21
Oregon
27
2.8
$4.91
$8.68
$3.79
$5.94
Pennsylvania
571
298.2
$14.98
$12.93
$12.77
$15.46
Puerto Rico
3
--
--
--
--
--
Rhode Island
53
16.3
$9.99
$10.23
$9.29
$10.29
South Carolina
148
59.4
$12.63
$8.79
$12.50
$12.82
South Dakota
65
11.2
$10.15
$9.37
$9.79
$13.07
Tennessee
281
101.9
$13.12
$7.40
$11.86
$13.69
Texas
1076
408.7
$15.40
$10.03
$12.80
$16.41
Utah
57
7.6
$6.50
$9.95
$6.88
$5.73
Vermont
20
6.3
$10.75
$5.46
$15.05
$9.59
Virginia
242
156.8
$19.30
$6.73
$16.15
$20.36
Washington
93
23.4
$10.28
$10.68
$8.44
$11.48
West Virginia
103
30.1
$10.88
$9.03
$9.86
$11.90
Wisconsin
Wyoming
189
41.3
$11.26
$7.93
$10.52
$12.56
United States
19
6.2
$13.06
$0.00
$8.37
$14.84
11,010
4,284.2
$13.83
$9.68
$14.36
$11.42
khammond on DSKJM1Z7X2PROD with RULES3
In table 29, we calculated the average
cost by State for facilities needing staff
to meet the minimum staffing
requirements based on whether the
facility accepted patients with
Medicare, Medicaid, or both Medicare
VerDate Sep<11>2014
20:37 May 09, 2024
Jkt 262001
and Medicaid. The highest per resident
day cost will be for 14 Medicaid-only
facilities in North Dakota that will need
to spend an average of $42.48 per
resident day to meet the staffing
requirements. The lowest per resident
PO 00000
Frm 00111
Fmt 4701
Sfmt 4700
day cost for facilities needing staff will
be for two Medicare-only facilities in
West Virginia that will need to spend
$0.59 per resident day to meet the
requirements.
E:\FR\FM\10MYR3.SGM
10MYR3
ER10MY24.118</GPH>
State
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State
Alabama
Alaska
Arizona
Arkansas
California
Colorado
Connecticut
Delaware
District of
Columbia
Florida
Georgia
Hawaii
Idaho
Illinois
Indiana
Iowa
Kansas
Kentucky
Louisiana
Maine
Maryland
Massachusetts
Michigan
Minnesota
Mississippi
Missouri
Montana
Nebraska
Nevada
New Hampshire
New Jersey
New Mexico
New York
North Carolina
North Dakota
Ohio
Oklahoma
Oregon
Pennsylvania
Puerto Rico
Rhode Island
South Carolina
South Dakota
Tennessee
VerDate Sep<11>2014
20:37 May 09, 2024
Medicare
Only
Facilities
4
0
13
0
7
9
0
3
Medicare
Only
Facilities Cost
per Resident
Day
$5.87
$0.00
$7.84
$0.00
$3.51
$5.85
$0.00
$6.47
Medicaid
Only
Facilities
$0.00
$9.96
$5.94
$0.00
$0.00
$5.58
$17.82
$3.09
$12.98
$9.72
$4.27
$0.00
$10.02
$14.14
$6.28
$5.84
$19.62
$9.63
$0.00
$0.00
$6.74
$0.00
$8.83
$0.00
$0.00
$11.76
$31.33
$8.84
$6.39
$0.00
$9.70
$0.00
$0.00
$6.87
$0.00
$9.05
0
6
4
0
0
9
7
2
1
5
6
0
2
4
1
4
3
5
0
0
3
0
5
0
0
7
1
5
2
0
33
3
0
10
0
18
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PO 00000
Frm 00112
Medicare
and
Medicaid
Facilities
1
0
0
2
19
3
0
2
Medicaid
Only
Facilities
Cost per
Resident Day
$12.92
$0.00
$0.00
$2.18
$28.85
$28.34
$0.00
$10.37
171
1
92
180
721
135
151
31
Medicare and
Medicaid
Facilities Cost
Cost per
Resident Day
$10.09
$7.50
$12.54
$7.53
$9.09
$10.19
$12.05
$11.36
0
0
0
0
0
14
5
5
9
0
0
0
0
0
1
6
12
6
0
3
1
1
0
1
0
1
0
0
2
2
1
0
0
0
6
4
$0.00
$0.00
$0.00
$0.00
$0.00
$42.48
$11.21
$11.49
$22.98
$0.00
$0.00
$0.00
$0.00
$0.00
$2.71
$32.60
$9.74
$17.31
$0.00
$7.53
$26.14
$6.60
$0.00
$8.08
$0.00
$17.82
$0.00
$0.00
$6.92
$7.52
$3.98
$0.00
$0.00
$0.00
$7.01
$8.30
7
285
322
8
40
542
444
261
136
214
232
16
174
296
314
146
142
365
40
77
34
45
278
50
500
332
18
792
200
23
535
0
53
137
58
259
$6.33
$5.34
$16.40
$9.61
$6.95
$20.62
$14.06
$9.28
$8.82
$11.13
$15.34
$5.89
$12.06
$12.59
$14.75
$9.20
$9.41
$13.68
$14.31
$8.86
$13.79
$14.27
$14.71
$11.04
$15.12
$13.17
$12.66
$14.81
$9.31
$4.60
$15.15
$0.00
$9.99
$12.82
$10.46
$13.36
Fmt 4701
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E:\FR\FM\10MYR3.SGM
10MYR3
ER10MY24.119</GPH>
Table 29: Number ofLTC Facilities in State Needing to Hire Staff and the Average Cost
per Resident Day by Medicare, Medicaid, and Dual Acceptance Status
Federal Register / Vol. 89, No. 92 / Friday, May 10, 2024 / Rules and Regulations
Texas
Utah
Vermont
Virginia
Washington
West Virginia
Wisconsin
Wyoming
United States
Medicare
Only
Facilities
Medicare
Only
Facilities Cost
per Resident
Dav
$8.53
$9.15
$0.00
$3.26
$0.00
$0.59
$1.40
$0.00
$8.04
23
4
0
9
0
2
2
0
222
BILLING CODE 4120–01–C
khammond on DSKJM1Z7X2PROD with RULES3
b. Benefits of LTC Minimum Staff
Requirement
Evidence in the literature suggests
that higher staffing is associated with
better quality of patient care and patient
health outcomes.118 119 120 While many
of these benefits are difficult to quantify,
research suggests a positive correlation
between higher RN HPRD and more
community discharges, as well as fewer
hospitalizations and emergency
department visits that result in
significant savings for Medicare. An
example of such evidence comes from
the 2022 Nursing Home Staffing Study
that analyzes the Medicare savings that
are likely to result from different casemix adjusted RN hours per resident day
(HPRD) requirements.
The study first used the PBJ system,
which contains data on daily hours
worked by RNs, and data from the
Minimum Data Set (MDS) on resident
acuity and the number of residents in
the facility, to calculate the acuityadjusted RN HPRD for 14,140 LTC
facilities based on data from 2022 Q2.121
We would note, as discussed above, that
while the benefits described in this
118 Cai, S., Yan, D., & Intrator, O. (2021). COVID–
19 cases and death in nursing homes: The role of
racial and ethnic composition of facilities and their
communities. Journal of the American Medical
Directors Association, 22(7), 1345–1351.
119 Harris, J.A., Engberg, J., & Castle, N.G. (2020).
Organizational and geographic nursing home
characteristics associated with increasing
prevalence of resident obesity in the United States.
Journal of Applied Gerontology, 39(9), 991–999.
https://doi.org/10.1177/07464819843045 https://
doi.org/10.1177/07464819843045.
120 Min, A., & Hong, H.C. (2019). Effect of nurse
staffing on rehospitalizations and emergency
department visits among short-stay nursing home
residents: A cross-sectional study using the U.S.
Nursing Home Compare database. Geriatric
Nursing, 40(2), 160–165. https://doi.org/10.1016/j.g.
121 In the study, appendix E, section E.1.1
provides details on the criteria used for the acuity
adjustment.
VerDate Sep<11>2014
20:37 May 09, 2024
Jkt 262001
Medicaid
Only
Facilities
6
4
0
5
0
1
1
0
124
Medicaid
Only
Facilities
Cost per
Resident Dav
$10.40
$13.36
$0.00
$15.09
$0.00
$8.01
$5.13
$0.00
$21.13
section were calculated on the basis of
acuity-adjusted data, the minimum
staffing requirements being finalized in
this rule will be applied independent of
an individual facility’s case-mix. We
understand that this may impact the
comparability of the benefits described
in this section to those which may occur
with the finalization of these
requirements, but we also believe that
the acuity adjusted data more accurately
reflect that which is publicly reported
through Care Compare and the PBJ
System. Registered nurses included
RNs, RNs with administrative duties,
and RN directors of nursing. The 2022
Study then used Nurse Home Compare
Data from 2021 Q2 to 2022 Q1 to
examine the impact of different RN
staffing levels on five claims-based
measures: short-stay hospital
readmission, short-stay emergency
department (ED) visits, long-stay
hospitalizations per 1,000 long-stay
resident days, long-stay ED visits per
1,000 long-stay resident days, and the
rate of successful return to home or
community. More specifically, the study
ran a multivariate regression model that
used the 1st and 2nd RN staffing decile
as the reference group and included the
3rd through the 10th deciles of RN
staffing as covariates in the model. The
model also includes several additional
covariates that take into account LTC
facility specific characteristics that
include: (1) facility size (number of
certified beds), (2) ownership type (forprofit, non-profit or government
owned), (3) whether the facility is
located in a rural area, (4) the facility’s
Medicaid population quartile, (5)
whether the facility is hospital-based,
(6) the facility’s status in the Special
Focus Facility Program, and (7) whether
the facility is part of a continuing care
retirement community. The study then
used the model coefficients to identify
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Fmt 4701
Sfmt 4700
Medicare
and
Medicaid
Facilities
1,039
49
20
226
93
98
184
19
10,585
Medicare and
Medicaid
Facilities Cost
Cost per
Resident Dav
$15.56
$6.09
$10.75
$19.68
$10.28
$10.81
$11.35
$13.06
$13.38
the mean outcomes that were associated
with each staffing level above the 1st
and 2nd RN staffing deciles.
After identifying the mean outcome
rate for each of the five measures that
was associated with each staffing level,
they compared it to the adjusted mean
outcome rate for each facility to the rate
the facility would have if it met the
minimum required RN staffing level.
For those facilities above the minimum
RN staffing level, the study assumed
that facilities would maintain their
current RN staffing level. Based on the
facility’s number of short-stay residents,
as well as long-stay resident days, the
study then estimated the total savings at
the facility level. To measure costs
savings for Medicare, the study used an
average estimated cost of $20,400 per
hospitalization, $2,500 per ED visit, and
for community and home discharge, the
reduction in the number of Medicarecovered SNF days multiplied by the
average daily payment amount. Using
these criteria, the study estimates that a
minimum RN requirement of between
0.52 and 0.60 HPRD would result in
$318,259,715 in annual Medicare
savings.122
Given that our final RN HPRD level is
0.55 we consider this amount to be our
best estimate of the rule’s financial
benefits. There are also likely to be cost
savings for Medicaid due to fewer
hospitalizations and emergency
department visits, although the 2022
Nursing Home Staffing Study did not
quantify them. Additionally, while the
savings estimate above reflects an
acuity-adjusted standard, given
variability in acuity across facilities, we
believe that these savings estimates
122 Abt Associates. (2022). Nursing Home Staffing
Study Comprehensive report. Page 110. Report
prepared for the Centers for Medicare & Medicaid
Services. https://edit.cms.gov/files/document/
nursing-home-staffing-study-final-report-appendixjune-2023.pdf.
E:\FR\FM\10MYR3.SGM
10MYR3
ER10MY24.120</GPH>
State
40987
40988
Federal Register / Vol. 89, No. 92 / Friday, May 10, 2024 / Rules and Regulations
provide guidance on the impact of
applying the minimum staffing
requirements independent of a facility’s
case-mix.
Table 30 provides the estimated
quantifiable benefits annually and over
10 years. Since the 0.55 RN HPRD
requirement will not go into effect until
Year 3, we estimate no reduction in
Emergency Department visits and
hospitalizations, as well as increase in
discharges to home or the community
for the first 2 years. Over 10 years, we
estimate a total of approximately $2.55
billion in Medicare cost savings.
Table 30: 0.55 RN Minimum Staffing Requirement and Medicare Cost Savings
Medicare Cost Savings
$0
$0
$318,259,715
$318,259,715
$318,259,715
$318,259,715
$318,259,715
$318,259,715
$318,259,715
$318,259,715
Year
1
2
3
4
5
6
7
8
9
10
khammond on DSKJM1Z7X2PROD with RULES3
We expect that the 24/7 RN, 3.48 total
nurse staff, and 2.45 NA HPRD
requirements will also bring substantial
benefits for residents, staff and LTC
facilities. As we noted in the statement
of need for this regulatory impact
analysis, there is a positive association
between the number of hours of care
that a resident receives each day and
resident health and safety.123 124 125 The
higher staffing standards we are
finalizing and the resultant
improvements in quality and safety will
also provide greater assurance to
residents’ families—an important, but
difficult to quantify, measure.
Research also suggests that there is a
positive relationship between
inadequate staffing and nursing staff
burnout, which can lead to high
employee turnover, and conversely,
123 Ochieng, N., Chidambaram, P., Musumeci, M.
Nursing Facility Staffing Shortages During the
COVID–19 Pandemic. Apr 04, 2022. Kaiser Family
Foundation. Accessed at https://www.kff.org/
coronavirus-covid-19/issue-brief/nursing-facilitystaffing-shortages-during-the-covid-19-pandemic/.
124 Harrington, C., Carrillo, H., Garfield, R.,
Squires, E. Nursing Facilities, Staffing, Residents
and Facility Deficiencies, 2009 Through 2016. Apr
03, 2018. Kaiser Family Foundation. Accessed at
https://www.kff.org/report-section/nursingfacilities-staffing-residents-and-facility-deficiencies2009-through-2016-staffing-levels/.
125 Min A., Hong, H.C., Effect of nurse staffing on
rehospitalizations and emergency department visits
among short-stay nursing home residents: A Crosssectional study using the U.S. Nursing Home
Compare database. Geriatr Nurs. 2019 Mar–
Apr;40(2):160–165. doi: 10.1016/
j.gerinurse.2018.09.010. Epub. 2018 Oct. 4. PMID:
30292528.
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$2,546,077,720
higher nurse staffing levels is associated
with lower nurse staff turnover rates,
suggesting that higher staffing levels
will benefit employees by providing a
better work environment.126 127 LTC
facilities are likely to benefit from the
higher staffing levels in the long-term
with a reduction in the number of new
staff they will need to hire and train,
and lowered dependence on temporary
workers, who often command higher
hourly wages.
Lower turnover rates will also benefit
residents and LTC facility operators.
Higher turnover rates are associated
with a variety of problems in LTC
facilities including lower quality of
resident care, worse performance on
claims-based quality measures, a greater
likelihood of LTC facilities receiving an
infection control deficiency citation,
and more overall survey deficiency
citations, while higher long-term
licensed nurse (RN and LPN) retention
rates are correlated with lower 30-day
rehospitalization rates and higher
nursing assistant (NA) retention rates
are associated with fewer overall
deficiency citations, quality of care
deficiency citations, and deficiencies
126 Kelly, L.A., Gee, P.M., Butler, R.J. Impact of
nurse burnout on organizational and position
turnover. Nurs. Outlook. 2021 Jan–Feb;69(1):96–
102. doi: 10.1016/j.outlook.2020.06.008. Epub. 2020
Oct 4. PMID: 33023759; PMCID: PMC7532952.
127 Donoghue, C. (2010). Nursing Home Staff
Turnover and Retention: An Analysis of National
Level Data. Journal of Applied Gerontology, 29(1),
89–106. https://doi.org/10.1177/
0733464809334899.
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that pose an immediate jeopardy to
resident health or
safety.128 129 130 131 132 133 134
Sources of uncertainty about the
benefits of the 24/7 RN, 3.48 total nurse
staff, 0.55 RN, and 2.45 NA HPRD
requirements parallel the cost
uncertainty discussed earlier but with
some differences:
The benefits estimate assumed that
LTC facilities needing RNs and/or NAs
to meet these requirements will hire the
necessary staff. It does not, however,
128 Harrington, C., Swan, J.H. Nursing home
staffing, turnover, and case mix. Med. Care Res.
Rev. 2003;60(3):366–92; discussion 393–9. DOI:
10.1177/1077558703254692.
129 Castle, N.G., Engberg, J. Staff Turnover and
Quality of Care in Nursing Homes. Medical Care
2005;43(6):616–626.
130 Zheng, Q., Williams, C.S., Shulman, E.T.,
White, A.J. Association between staff turnover and
nursing home quality—evidence from payroll-based
journal data. J. Am. Geriatr. Soc. 2022;70(9):2508–
2516. DOI: 10.1111/jgs.17843.
131 Loomer, L., Grabowski, D.C., Yu, H., Gandhi,
A. Association between nursing home staff turnover
and infection control citations. Health Serv. Res.
2022;57(2):322–332. DOI: 10.1111/1475–
6773.13877.
132 Lerner, N.B., Johantgen, M., Trinkoff, A.M.,
Storr, C.L., Han, K. Are nursing home survey
deficiencies higher in facilities with greater staff
turnover. J. Am. Med. Dir. Assoc. 2014;15(2):102–
7. DOI: 10.1016/j.jamda.2013.09.003.
133 Thomas, K.S., Mor, V., Tyler, D.A., Hyer, K.
The relationships among licensed nurse turnover,
retention, and rehospitalization of nursing home
residents. Gerontologist 2013;53(2):211–21. DOI:
10.1093/geront/gns082.
134 Castle, N.G., Hyer, K., Harris, J.A., Engberg, J.
Nurse Aide Retention in Nursing Homes.
Gerontologist 2020;60(5):885–895. DOI: 10.1093/
geront/gnz168.
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Federal Register / Vol. 89, No. 92 / Friday, May 10, 2024 / Rules and Regulations
take into account how changes in the
number of hours per resident day of
other direct care or support staff that
occur in response to the finalized
requirements might affect the impact
that increasing the RN HPRD will have
on Medicare cost savings. Some
research, however, has found that when
States implemented minimum hour per
day requirements for direct care staff
(RNs, LPNs, and NAs), LTC facilities
responded by reducing indirect care
staff, such as housekeeping, food
service, and activities staff.135 136 If LTC
facilities respond to the 24/7 RN, 3.48
total nurse staff HPRD, the 0.55 RN
HPRD, and the 2.45 NA HPRD
requirement in similar ways, then
benefits of the requirements would be
lower than what is presented above (see
earlier discussion about appropriate
accounting depending on the
consistency between benefit and cost
analytic approaches).
The benefits estimate assumed that
LTC facilities that exceed the 24/7 RN,
3.48 total nurse staff, 0.55 RN HPRD,
and 2.45 NA HPRD requirements would
maintain RN, NA, and total staffing at
their current levels. Research examining
how LTC facilities have responded to
State level staffing mandates provides
mixed evidence for this assumption,
with some research finding no evidence
that LTC facilities exceeding minimum
requirements reduce staffing, while
other research suggests that they do.137
If LTC facilities reduced RN, NA, and
total nurse staffing levels to a level that
is closer to the minimum requirement,
then benefits would be lower than what
is estimated above.
The benefits estimate assumed no real
growth in the financial value of reduced
Emergency Department visits and
hospitalizations, as well as increase in
discharges to home or the community.
If, however, the cost of Emergency
Department visits and hospitalizations
grows faster than the rate of inflation,
then value of these benefits will be
higher than what we have estimated
here.
The benefit estimates assumed that
the nursing home resident population
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135 Thomas,
Kali S., Kathryn Hyer, Ross Andel,
and Robert Weech-Maldonado. The Unintended
Consequences of Staffing Mandates in Florida
Nursing Homes: Impacts on Indirect-Care Staff,
2010, Medicare Care Research and Review, Volume
67, Issue 5, Pages 555–573.
136 Bowblis, John R., and Kathryn Hyer. Nursing
Home Staffing Requirements and Input
Substitution: Effects on Housekeeping, Food
Service, and Activities Staff, 2013, Health Services
Research, Volume 48, Issue 4, Pages: 1539–1550.
137 Chen, Min M., and David C. Grabowski.
Intended and Unintended Consequences of
Minimum Staffing Standards for Nursing Homes,
2015, Volume 24, Pages 822–839.
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will remain stable over the next 10
years. There is some evidence, however,
that the resident population is
declining. CMS Care Compare data
shows that between February 2017 and
February 2024, the average number of
residents in nursing homes per day
declined from 1,346,712 residents to
1,207,726.138 If the resident population
continues to decrease, then the benefits
could be lower than what we have
estimated. Similarly, if the pattern
changes and the nursing home resident
population increases, the benefits could
be higher than what we have estimated.
The benefits estimate assumed that no
LTC facilities would obtain exemptions
from the 24/7 RN, 3.48 total nurse staff
HPRD, 0.55 RN HPRD, and 2.45 NA
HPRD requirements, although some
facilities could obtain such an
exemption. Based only on being located
in an area with a nurse staffing shortage,
a preliminary analysis of the data
suggests that more than 29 percent of
facilities would be eligible for an 8-hour
exemption from the 24/7 RN
requirement and the 0.55 RN HPRD
requirement, 23 percent of facilities
would be eligible for an exemption from
the 2.45 NA HPRD requirement, and 22
percent of facilities would be eligible for
an exemption from the 3.48 HPRD total
nurse staff requirement. Since facilities
would also need to meet all other
requirements to obtain an exemption,
however, these numbers are not
reflective of the number of facilities
estimated to fully qualify for the
exemptions as they only describe the
number of facilities that would satisfy
the workforce availability criterion.
Depending on the number of facilities
that obtain an exemption, the total
benefits of the rule could be lower than
what is presented above.
States could vary in how they respond
to the increased staffing requirement,
including whether they pay at least
some of the additional nursing staffing
costs with Medicaid funds. Benefits
consequences are contingent upon such
choices. For example, if overall
Medicaid spending does not increase,
but funds are shifted from other uses to
increased LTC facility staffing, there
would be negative health benefits for
the patients experiencing reduced
Medicaid coverage.
138 CMS. (2024). Nursing homes including rehab
services archived data snapshots. Accessed March
19, 2024. Available at: https://data.cms.gov/
provider-data/archived-data/nursing-homes.
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40989
d. Transfers Associated With the 24/7
RN and 0.55 RN and 2.45 NA HPRD
Minimum Staffing Requirements
We do not estimate transfers
associated with the 24/7 RN, 3.48 total
nurse staff HPRD, 0.55 RN HPRD, and
the 2.45 NA HPRD minimum staffing
portion of this rule since there are no
requirements that Medicare, Medicaid,
and other non-Medicare/Medicaid
payors increase payment rates in
response to these requirements.
(5) Medicaid Institutional Payment
Transparency Reporting Provision
Impacts
Under our authority at sections
1902(a)(6) and (a)(30) of the Act with
regard to fee-for-service delivery
systems, and sections 1902(a)(4) and
1932(c) of the Act with regard to
managed care delivery systems, we are
finalizing new reporting requirements at
§ 442.43(b) and (c) for States to report
annually by facility on the percent of
payments for Medicaid-covered services
delivered by nursing facilities and ICFs/
IID that are spent on compensation for
direct care workers and support staff.
As finalized, States are required to
report annually to CMSs on the percent
of payments for nursing facility and
ICF/IID services that are spent on
compensation for direct care workers
and support staff. We are finalizing that
States are required to post all reported
data on a State-maintained website (or
link to such information on an MCO’s
or PIHP’s website, as applicable), which
States must ensure is reviewed quarterly
to verify the accurate function of the
website and that the information
remains accurate and up to date. We
believe that gathering and sharing data
about the amount of Medicaid dollars
that are going to the compensation of
workers is a critical step in the larger
effort to understand the ways we can
enact policies that support the
institutional care workforce and thereby
help advance access to high quality care
for Medicaid beneficiaries.
a. Costs of Medicaid Institutional
Payment Transparency Reporting
The following discussion is based on
costs to States, the Federal Government,
and providers that were summarized in
table 24 and described in detail in the
Collection of Information (section V. of
this final rule). As outlined in section
V., we estimate one-time
implementation costs of $838,475 for
States to come into compliance with the
reporting requirements finalized at
§ 442.43(b) and (c). As discussed in
section V., the Federal Government,
through Federal Financial Participation,
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has a share in Medicaid expenditures,
which for the purposes of these burden
estimates is 50 percent of Medicaid
expenditures. Thus, we estimate the
one-time costs of the reporting
requirement finalized at § 442.43(b) and
(c) as $419,237 for States and $419,237
for the Federal Government. We
estimate an annual total cost of $97,470
once the reporting requirement goes into
effect; again, as the costs will be split
between States and the Federal
Government, we estimate the annual
ongoing costs as $48,735 for States and
$48,735 for the Federal Government. A
breakdown of these figures may be
found in tables 18 and 19 in the
Collection of Information (section V. of
this final rule.)
Additionally, under finalized
§ 442.43(d), States are required to make
this information available on a public
website; as outlined in the Collection of
Information (section V. of this rule), we
estimate a one-time implementation
costs of $239,333 for States to come into
compliance with this requirement; as
the costs will be split between States
and the Federal Government, we
estimate the one-time cost for States as
$119,667 and $119,667 for the Federal
Government. We estimate an ongoing
annual cost of $295,527 once reporting
starts; as the costs will be split between
States and the Federal Government, we
estimate the one-time cost as $147,764
for States and $147,764 for the Federal
Government. A breakdown of these
figures may be found in tables 22 and
23 in section V.
The total State and Federal costs for
both the reporting and website
requirements are thus estimated at
$1,077,808 for implementation costs
($838,475 + $239,333) and $392,997
ongoing annual costs once the reporting
starts ($97,470 + $295,527).
As discussed in the Collection of
Information (section V. of this rule), we
estimate that the total cost to providers
to prepare for compliance with the
reporting requirement finalized at
§ 442.43(b) and (c) will be $36,560,002,
and an annual total cost to providers of
$17,912,717. A breakdown of these
figures may be found in tables 30 and
31 in section V.
We do not estimate a cost to providers
for the website posting requirement
finalized at § 442.43(d). We also do not
anticipate costs to beneficiaries
associated with these requirements.
Table 31 provides a detailed summary
of the estimated costs of each of the
requirements for States, the Federal
Government, and providers. Table 32
summarizes the estimated costs of the
requirements in § 442.43 for States, the
Federal Government, and providers
(Nursing Care Facilities (NAICS 623110)
and Residential Intellectual and
Developmental Disabilities Facilities
(NAICS 623210)), over 10 years. Aside
from regulatory review costs (discussed
in the next section) this comprises the
entirety of anticipated quantifiable costs
associated with the finalized changes to
part 442, subpart B. The implementation
costs associated with the finalized
reporting and website posting
requirements are split evenly over the
years leading up to the finalized
effective date, which is 4 years from this
final rule’s publication. For States and
the Federal Government, this means that
the implementation costs are
represented as $107,736 per year for 4
years ($430,942 estimated
implementation costs/4 years). For
providers, the implementation costs are
represented as $9,140,000 per year for 4
years ($36,560,002 estimated
implementation costs/4 years). We also
anticipate that once the rule goes into
effect in Year 5, the ongoing annual
costs will be relatively stable. We have
shown the recurring annual estimate for
Years 5 to 10 in table 32. The estimates
below do not account for higher costs
associated with medical care; the costs
calculated here are related exclusively
to reporting and website posting costs.
Per OMB guidelines, the projected
estimates for future years are reported in
real (inflation-indexed) dollars.
As discussed in the Collection of
Information (section V. of this rule),
costs were based on: (1) the number of
States (including Washington, DC, and
certain territories) that currently operate
Medicaid programs that cover nursing
facility or ICF/IID services; (2) the
number of States that deliver long-term
services and supports through a
managed care delivery system; and (3)
the total number of freestanding
Medicaid-certified nursing facility and
ICF/IID facilities in all States. We do not
anticipate the number of entities
changing significantly over the 10 years
included in the cost calculations.
Table 31: Implementation and Annual Costs Detailed
119,667
119,667
147,763
147,763
17,912,717
239,333
295,526
735,402
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54,472,719
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-
37,637,809
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40991
Table 32: Projected Distribution of Costs for Proposed Updates to 42 CFR Part 442,
Subpart B
1
2
3
4
5
6
7
8
9
10
10 Year Total Cost
State Costs
Federal Costs
Provider Costs
183,851
183,851
183,851
183,851
196,498
196,498
196,498
196,498
196,498
196,498
1,914,392
183,851
183,851
183,851
183,851
196,498
196,498
196,498
196,498
196,498
196,498
1,914,392
9,140,000
9,140,000
9,140,000
9,140,000
17,912,717
17,912,717
17,912,717
17,912,717
17,912,717
17,912,717
144,036,302
b. Benefits of Medicaid Institutional
Payment Transparency Reporting
Our finalized requirements are
intended to support the sufficiency of
the direct care and support staff
workforce through public reporting of
compensation to these workers. While
we believe this finalized provision will
provide benefits, we are not able to
quantify these benefits at this time.
There are many factors that contribute
to understaffing in institutional settings.
We are constantly seeking opportunities
to address these challenges through
guidance, policies, and rulemaking.
These finalized requirements are
intended to promote transparency
around compensation for direct care
workers and support staff. We believe
that gathering and sharing data about
the amount of Medicaid payments going
to the compensation of workers is a
critical step in the larger effort to
understand the ways we can enact
future policies that support the
institutional care workforce.
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c. Transfers Associated With Medicaid
Institutional Payment Transparency
Reporting
We do not estimate transfers
associated with these finalized
provisions.
D. Alternative Direct Care Staff HPRD
Requirement Considered
As detailed earlier in this final rule,
despite the existing requirements and
the efforts to improve safety, as well as
residents’ quality of care and quality of
life through the revisions in the 2016
final rule, understaffing in LTC facilities
continues to be a concern. We believe
the changes we are finalizing are
consistent with current standards of
practice and necessary to increase
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resident safety and quality of care. We
acknowledge, however, that there were
multiple avenues for establishing a
minimum nurse staffing requirement
and in the proposed rule we solicited
comments on alternative policy options,
including a specific comment
solicitation in the ‘‘Provisions of the
Proposed Regulation’’ section.
In developing the final rule, we
considered varying staffing models that
were available and different approaches
we could have adopted for the proposed
minimum nurse staffing requirement.
We could have adopted multiple
different types of combinations of a
staffing requirement such as separate
requirements for RNs, LVNs/LPNs, and
NAs or creating standards for NAs only.
We could also have implemented
individual HPRD requirements for RNs
and NAs together with a 24/7 RN
requirement but excluded any
requirement for an overall nurse staffing
HPRD level, which was a policy
discussed in detail in the proposed rule.
Alternatively, we could have adopted
non-nurse staffing requirements such as
social workers, therapists, feeding
assistants and other non-nurse staffing
types in the minimum staffing
requirement. Alternative minimum
staffing policy options could have also
focused on the need to increase or
decrease the number of HPRD or FTEs
by nurse staff and/or type or on
specifying the number of staff by shift
(including day, evening, night, or
weekends or over a 24-hour period).
Ultimately, we chose the
comprehensive 24/7 RN, 3.48 total
nurse staff HPRD, 0.55 RN HPRD, and
2.45 NA HPRD requirements in this
final rule to strike a balance between
ensuring resident health and safety,
while preserving access to care,
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Total Costs
associated with §
442.43
9,507,702
9,507,702
9,507,702
9,507,702
18,305,713
18,305,713
18,305,713
18,305,713
18,305,713
18,305,713
147,865,086
including discharge to communitybased services. We considered a staffing
standard that would maintain the 24/7
RN and 2.45 NA HPRD requirements but
would have a lower RN HPRD
requirement. We found, however, that
even a small reduction in the RN HPRD
requirement compared to baseline RN
HPRD levels that are in the two lowest
deciles for nursing homes nationwide
would lead to a large decline in quality
of care. For example, the 2022 Nursing
Home Staffing Study 139 found that
reducing the case-mix adjusted RN
HPRD requirement to between 0.45 and
0.52 hours per resident day would lead
the staffing standard to have a smaller
impact on Medicare savings, reduced
hospitalizations and ED visits, and
fewer community discharges. More
specifically, the number of reduced
hospitalizations would decline from
10,445 to 5,781, the number of reduced
ED visits would decline from 7,525 to
4,466, increased community discharges
would decline from 5,798 to 3,930, and
Medicare savings would decline by
more than $130 million annually. We
also considered alternative minimum
staffing requirements at the same level
we are finalizing but with a longer
phase-in period for the 3.48 total nurse
staff HPRD requirement. We ultimately
decide to provide a shorter phase-in
period for the 3.48 total nurse staff
HPRD requirement to ensure resident
health and safety.
2. Medicaid Institutional Payment
Transparency Reporting
We considered, but did not finalize, a
proposal to require States to report per
diem FFS rate for nursing facility and
ICF/IID services; we did not finalize this
proposal as we believed it would
duplicate other reporting requirements.
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We also considered, but did not finalize,
a proposal to require States to report on
median hourly wage and to require that
States report data by job title. We did
not finalize this proposal because we
expected that this would increase
reporting burden for States and
providers without giving us additional
information necessary for determining
the percent of payments that are going
to the workforce.
E. Regulatory Review Costs
1. Regulatory Review Costs of 24/7 RN,
3.48 Total Nurse Staff, 0.55 RN and 2.45
NA HPRD Minimum Nurse Staffing
Requirements
If the 24/7 RN and the Minimum
Nurse staffing requirements impose
administrative costs on private entities,
such as the time needed to read and
interpret this final rule, we should
estimate the cost associated with
regulatory review. As discussed in the
Collection of Information (section V. of
this final rule), 14,688 LTC facilities
will be impacted by the finalized
requirements. We assume that all 14,688
LTC facilities will proactively review
this final rule. (We note that the FY
2023 SNF PPS proposed rule, 87 FR
22720, had around 18,000 views, as
shown at https://www.federal
register.gov/documents/2022/04/15/
2022-07906/medicare-programprospective-payment-system-andconsolidated-billing-for-skilled-nursingfacilities. Some of these views were
likely multiple views by the same
reader.) We acknowledge that this
assumption may understate the costs of
reviewing this rule. It is possible that
there may be more than one individual
reviewing the rule for some LTC
facilities. It is also possible that entities
other than LTC facilities, such as
beneficiary advocacy groups, may
review this rule.
We also recognize that different types
of entities are in many cases affected by
mutually exclusive sections of some
final rules, or that some entities may not
find it necessary to fully read each rule,
and therefore for the purposes of our
estimate we assume that each reviewer
will read approximately 50 percent of
the section of the rule discussing the 24/
7 RN requirement and the 3.48 total
nurse staff, 0.55 RN, and 2.45 NA HPRD
requirements.
Using the wage information from the
Bureau of Labor Statistics, May 2022
National Occupational Employment and
Wage Estimates, https://www.bls.gov/
oes/current/oes_nat.htm, for medical
and health service managers (Code 11–
9111), we estimate that the cost of
reviewing this rule is $123.06 per hour,
including overhead and fringe benefits.
Assuming an average reading speed of
250 words per minute, and assuming
that two-thirds (67 percent) of this final
rule pertains to the 24/7 RN, 3.48 total
nurse staff HPRD, 0.55 RN HPRD, and
2.45 NA HPRD requirements, with
approximately 40,000 words (of which
we estimate 20,000 words will be read
by reviewers), we estimate that it would
take 80 minutes or 1.33 hours for the
staff to review all the sections of the
final rule pertaining to the 24/7 RN and
the 3.48 total nurse staff HPRD, 0.55 RN
HPRD, and 2.45 NA HPRD
requirements. For each employee that
reviews the rule, the estimated cost is
$163.67 (1.33 hours × $123.06).
Therefore, we estimate that the total
one-time cost of reviewing this
regulation is $2,403,985 ($163.67 ×
14,688).
2. Regulatory Review Costs of Medicaid
Institutional Payment Transparency
Reporting
As discussed in the Collection of
Information (section IV. of the proposed
rule at 88 FR 61393 and 61395), 54 State
Medicaid agencies and approximately
19,907 nursing facilities and ICFs/IID
would be impacted by the requirements,
totaling 19,961 interested parties. We
note that there was an error in the
proposed rule at 88 FR 64124 that stated
incorrectly that 52, rather than 54 State
Medicaid agencies were affected by the
rule; we have corrected that figure here.
As discussed in the proposed rule at
88 FR 64124, we estimated that 75
percent of these affected entities would
proactively review the final rule. We
welcomed any comments on this
approach but did not receive any
comments. Therefore, we are calculating
the regulatory review burden associated
with the provision finalized at § 442.43
using this assumption. We estimate that
14,971 entities read the rule for the
purpose of reviewing the provision
finalized at § 442.43 ([54 + 19,907] × 75
percent.)
Using the wage information from the
Bureau of Labor Statistics, May 2022
National Occupational Employment and
Wage Estimates, https://www.bls.gov/
oes/current/oes_nat.htm, for medical
and health service managers (Code 11–
9111), we estimated that the cost of
reviewing this rule is $123.06 per hour,
including overhead and fringe benefits.
Assuming an average reading speed of
250 words per minute, and assuming
that one-third of this rule pertains to
Medicaid Institutional Payment
Transparency Reporting, with
approximately 20,000 words (of which
we estimated 10,000 words were read by
reviewers), we estimated that it would
take 40 minutes or 0.67 hours for the
staff to review portions of the sections
of the final rule pertaining to the
Medicaid Institutional Payment
Transparency Reporting. For each
employee that reviewed the rule, the
estimated cost is $82.45 (0.67 hours ×
$123.06). Therefore, we estimated that
the total one-time cost of reviewing this
regulation is $1,234,359 ($82.45 ×
14,971).
Table 33 provides the total estimated
regulatory review costs for the rule,
which is $3,638,344.
Table 33: Regulatory Review Cost
F. Accounting Statement
As required by OMB Circular A–4
(available online at https://obama
whitehouse.archives.gov/omb/circulars_
a004_a-4/), we have prepared an
accounting statement in table 34
VerDate Sep<11>2014
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24/7 RN, 3.48 Total Nurse Staff and 0.55 RN
and 2.45 NA HPRD Minimum Nurse Staffmg
Requirements
$2,403,985
showing classification of the costs and
benefits associated with the provisions
of this final rule. This includes the total
cost for the 24/7 RN and the 3.48 total
nurse staff HPRD, 0.55 RN HPRD, and
2.45 NA HPRD requirements as
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Total Cost
$3,638,344
provided in table 22, the total cost for
the Medicaid Institutional Transparency
Reporting as provided in table 18, the
total cost for the regulatory review as
provided in table 33, and Medicare
savings due to fewer hospitalizations
E:\FR\FM\10MYR3.SGM
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ER10MY24.124</GPH>
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Medicaid Institutional Payment
Transparency Reporting
$1,234,359
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Jkt 262001
7%
2024-2033
3%
2024-2033
There are $0 in transfer estimates in the
statement. This statement provides our
Costs
3%
I
Discount Rate
236
2021
I
7%
247
2021
3,999
2021
4,179
2021
Period Covered
Year Dollar
I
I
Annualized Monetized
$million/year)
I
Annualized Monetized
l$million/_rear)
I Estimates
Categon::
Benefits
PO 00000
Frm 00119
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BILLING CODE 4120–01–P
10MYR3
40993
organizations, and small governmental
jurisdictions). The great majority of
hospitals and most other health care
providers and suppliers are small
entities, either by being nonprofit
organizations or by meeting the Small
Business Administration (SBA)
E:\FR\FM\10MYR3.SGM
entities. For purposes of the RFA, we
estimate that almost all Skilled Nursing
Facilities (NAICS 6231) and Intellectual
and Developmental Disabilities
Facilities (NAICS 6232) are small
entities, as that term is used in the RFA
(including small businesses, nonprofit
Units
best estimate for the Medicare and
Medicaid provisions of this rule.
Federal Register / Vol. 89, No. 92 / Friday, May 10, 2024 / Rules and Regulations
and emergency department visits, as
well as greater return to home and
community, as provided in table 30.
BILLING CODE 4120–01–C
G. Regulatory Flexibility Act Analysis
(RFA)
20:37 May 09, 2024
The RFA requires agencies to analyze
options for regulatory relief of small
entities, if a rule has a significant impact
on a substantial number of small
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Table 34: Accounting Statement: 24/7 RN Requirement, 3.48 Total Nurse Staff, 0.55 RN, and 2.45 NA HPRD Requirements,
and Medicaid Institutional Payment Transparency Reporting Requirement
40994
Federal Register / Vol. 89, No. 92 / Friday, May 10, 2024 / Rules and Regulations
definition of a small business (that is,
having revenues of less than $9.0
million to $47.0 million in any 1 year).
We utilized the revenues of
individual SNF providers (from recent
Medicare Cost Reports) to classify a
small business, and not the revenue of
a larger firm with which they may be
affiliated. As a result, for the purposes
of the RFA, we estimate that almost all
SNFs are small entities as that term is
used in the RFA, according to the Small
Business Administration’s latest size
standards, with total revenues of $34
million or less in any 1 year. In
addition, approximately 20 percent of
SNFs classified as small entities are
non-profit organizations. Therefore,
approximately 95 percent of the health
care entities impacted are considered
small businesses according to the Small
Business Administration’s size
standards with total revenues of $47
million or less in any 1 year. Individuals
and States are not included in the
definition of a small entity. According
to the 2017 Economic Census, Skilled
Nursing Facilities (NAICS 6231) and
Intellectual and Development
Disabilities Facilities (NAICS 6232)
together earned approximately $162
billion annually, with Skilled Nursing
Facilities earning nearly $119 billion
and Intellectual and Development
Disabilities Facilities earning
approximately $44 billion. Overall, the
cost is estimated to be between 2.30 and
2.42 percent of revenues.
Adjusting this amount for inflation, as
measured by the Consumer Price Index,
combined revenues in 2021 Dollars are
approximately $179.5 billion. Overall,
the cost is estimated to be between 2.23
and 2.32 percent of revenues.
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Skilled Nursing Facilities
and Intellectual and
Developmental Disabilities
Facilities
Annual Revenue
Estimated
Average
Annual Cost
for Providers
with3%
Discount Rate
Estimated
Average
Annual Cost
for Providers
with 7%
Discount Rate
Cost as
%of
Revenue
with3%
Discount
Rate
Cost as% of
Revenue
with 7%
Discount
Rate
$179,582,997,397
$3,999,000,000
$4,179,000,000
2.23
2.32
This rule will not have a significant
impact as measured by a change in
revenue of 3 to 5 percent on a
substantial number of small businesses
or other small entities. As its measure of
significant economic impact on a
substantial number of small entities,
HHS uses a change in revenue of more
than 3 to 5 percent. At this time, we do
not believe that this threshold will be
reached by the requirements in this final
rule. Therefore, the Secretary has
certified that this final rule will not
have a significant economic impact on
a substantial number of small entities.
In addition, section 1102(b) of the Act
requires us to prepare a regulatory
impact analysis if a rule may have a
significant impact on the operations of
a substantial number of small rural
hospitals. This analysis must conform to
the provisions of section 604 of the
RFA. For purposes of section 1102(b) of
the Act, we define a small rural hospital
as a hospital that is located outside of
an MSA and has fewer than 100 beds.
These proposals pertain solely to SNFs
and NFs. Therefore, the Secretary has
determined that these provisions will
not have a significant impact on the
operations of a substantial number of
small rural hospitals.
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H. Unfunded Mandates Reform Act
Analysis
Section 202 of the Unfunded
Mandates Reform Act (UMRA) of 1995
also requires that agencies assess
anticipated costs and benefits before
issuing any rule whose mandates
require spending in any 1 year of $100
million in 1995 dollars, updated
annually for inflation. In 2023, that
threshold is approximately $183
million. Based on the cost estimates
discussed in this section, we have
assessed the various costs and benefits
of the final updates to the requirements
for participation for LTC facilities.
These final updates will not impose
new requirements for State, local, or
Tribal governments. For the private
sector facilities, the regulatory impact
section, together with the remainder of
the preamble, constitutes the analysis
required under UMRA.
I. Federalism Analysis
Executive Order 13132 establishes
certain requirements that an agency
must meet when it issues a final rule
that imposes substantial direct
requirement costs on State and local
governments, preempts State law, or
otherwise has federalism implications.
With regard to the updates to the
requirements for participation for LTC
facilities, the provisions in this final
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rule are not intended to, and would not
preempt the applicability of any State or
local law providing a higher standard
(in this case, a higher HPRD
requirement for total nurse staff, RNs
and/or NAs or an RN coverage
requirement in excess of at least one RN
on site 24-hours per day, 7 days a week)
than we are requiring in this final rule.
To the extent Federal standards exceed
State and local law minimum staffing
standards, no Federal pre-emption is
implicated because facilities complying
with Federal law would also be in
compliance with State law. We are not
aware of any State or local law
providing for a maximum staffing level.
This final rule, however, is intended to
and would preempt the applicability of
any State or local law providing for a
maximum staffing level, to the extent
that such a State or local maximum
staffing level would prohibit a
Medicare, Medicaid, or dually certified
LTC facility from meeting the minimum
HPRD requirements and RN coverage
levels finalized in this rule or from
meeting higher staffing levels required
based on the facility assessment
provisions finalized in this rule.
In accordance with the provisions of
Executive Order 12866, this final rule
was reviewed by the Office of
Management and Budget.
Chiquita Brooks-LaSure,
Administrator of the Centers for
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Table 35: Regulatory Flexibility Act Analysis
Federal Register / Vol. 89, No. 92 / Friday, May 10, 2024 / Rules and Regulations
Medicare & Medicaid Services,
approved this document on April 10,
2024.
List of Subjects
42 CFR Part 438
Administrative practice and
procedure, Grant programs—health,
Health professions, Medicaid, Older
adults, People with disabilities,
Reporting and recordkeeping
requirements.
42 CFR Part 442
Administrative practice and
procedure, Grant programs—health,
Health professions, Medicaid, Older
adults, People with disabilities,
Reporting and recordkeeping
requirements.
42 CFR Part 483
Grant programs—health, Health
facilities, Health professions, Health
records, Medicaid, Medicare, Nursing
homes, Nutrition, Reporting and
recordkeeping requirements, Safety.
For the reasons set forth in the
preamble, the Centers for Medicare &
Medicaid Services amends 42 CFR
chapter IV as set forth below:
PART 438—MANAGED CARE
1. The authority citation for part 438
continues to read as follows:
■
Authority: 42 U.S.C. 1302.
2. Section 438.72 is added to subpart
B to read as follows:
■
§ 438.72 Additional requirements for longterm services and supports.
(a) Nursing facility services and
services delivered in intermediate care
facilities for individuals with
intellectual disabilities (ICFs/IID). The
State must comply with the
requirements in § 442.43 for nursing
facility and ICF/IID services.
(b) [Reserved]
PART 442—STANDARDS FOR
PAYMENT TO NURSING FACILITIES
AND INTERMEDIATE CARE
FACILITIES FOR INDIVIDUALS WITH
INTELLECTUAL DISABILITIES
3. The authority citation for part 442
is revised to read as follows:
■
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Authority: 42 U.S.C. 1302.
4. Section 442.43 is added to subpart
B to read as follows:
■
§ 442.43
Payment transparency reporting.
(a) Definitions. (1) Compensation
means, with respect to direct care
workers and support staff delivering
services authorized under this part:
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(i) Salary, wages, and other
remuneration as defined by the Fair
Labor Standards Act and implementing
regulations (29 U.S.C. 201 et seq., 29
CFR parts 531 and 778);
(ii) Benefits (such as health and dental
benefits, life and disability insurance,
paid leave, retirement, and tuition
reimbursement); and
(iii) The employer share of payroll
taxes.
(2) Direct care worker means one of
the following individuals who provides
services to Medicaid-eligible
individuals receiving services under
this part, who may be employed by or
contracted or subcontracted with a
Medicaid provider or State or local
government agency:
(i) A registered nurse, licensed
practical nurse, nurse practitioner, or
clinical nurse specialist;
(ii) A certified nurse aide who
provides services under the supervision
of a registered nurse, licensed practical
nurse, nurse practitioner, or clinical
nurse specialist;
(iii) A licensed physical therapist,
occupational therapist, speech-language
pathologist, or respiratory therapist;
(iv) A certified physical therapy
assistant, occupational therapy
assistant, speech-language therapy
assistant, or respiratory therapy
assistant or technician;
(v) A social worker;
(vi) A direct support professional;
(vii) A personal care aide;
(viii) A medication assistant, aide, or
technician;
(ix) A feeding assistant;
(x) Activities staff; or
(xi) Any other individual who is paid
to provide clinical services, behavioral
supports, active treatment (as defined at
§ 483.440 of this chapter) or address
activities of daily living (such as those
described in § 483.24(b) of this chapter)
for Medicaid-eligible individuals
receiving Medicaid services under this
part, including nurses and other staff
providing clinical supervision.
(3) Support staff means an individual
who is not a direct care worker and who
maintains the physical environment of
the care facility or supports other
services for residents. Support staff may
be employed by or contracted or
subcontracted with a Medicaid provider
or State or local government agency.
They include any of the following
individuals:
(i) A housekeeper;
(ii) A janitor or environmental
services worker;
(iii) A groundskeeper;
(iv) A food service or dietary worker;
(v) A driver responsible for
transporting residents;
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40995
(vi) A security guard; or
(vii) Any other individual who is not
a direct care worker and who maintains
the physical environment of the care
facility or supports other services for
Medicaid-eligible individuals receiving
Medicaid services under this part.
(4) Excluded costs means costs
reasonably associated with delivering
Medicaid-covered nursing facility or
ICF/IID services that are not included in
the calculation of the percentage of
Medicaid payments to providers that is
spent on compensation for direct care
workers and support staff. Such costs
are limited to:
(i) Costs of required trainings for
direct care workers and support staff
(such as costs for qualified trainers and
training materials);
(ii) Travel costs for direct care
workers and support staff (such as
mileage reimbursement or public
transportation subsidies); and
(iii) Costs of personal protective
equipment for facility staff.
(b) Reporting requirements. The State
must report to CMS annually, by
facility, the percentage of Medicaid
payments (not including excluded costs)
for services specified in paragraph (b)(1)
of this section, that is spent on
compensation for direct care workers
and on compensation for support staff,
at the time and in the form and manner
specified by CMS. For the purposes of
this part, Medicaid payment for fee-forservice (FFS) includes base and
supplemental payments as defined in
section 1903(bb)(2) of the Social
Security Act, and for payments from a
managed care organization (MCO) or
prepaid inpatient health plan (PIHP) (as
these entities are defined in § 438.2 of
this chapter) includes the MCO’s or
PIHP’s contractually negotiated rate,
State directed payments as defined in
§ 438.6(c) of this chapter, pass-through
payments as defined in § 438.6(a) of this
chapter for nursing facilities, and any
other payments from the MCO or PIHP.
(1) Services. Except as provided in
paragraphs (b)(2) and (3) of this section,
reporting must be based on all Medicaid
payments (including but not limited to
FFS base and supplemental payments,
and payments from an MCO or PIHP, as
applicable) made to nursing facility and
ICF/IID providers for Medicaid-covered
services, with the exception of services
provided in swing bed hospitals as
defined in § 440.40(a)(1)(ii)(B) of this
chapter.
(2) Exclusion of specified payments.
The State must exclude from its
reporting to CMS payments claimed by
the State for Federal financial
participation under this part for which
Medicaid is not the primary payer.
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(3) Exclusion of data from the Indian
Health Service and Tribal health
programs. States must exclude data
from the Indian Health Service and
Tribal health programs subject to the
requirements at 25 U.S.C. 1641 from the
reporting required in paragraph (b) of
this section.
(c) Report contents and
methodology—(1) Contents. Reporting
must provide information necessary to
identify, at the facility level, the percent
of Medicaid payments spent on
compensation to:
(i) Direct care workers at each nursing
facility;
(ii) Support staff at each nursing
facility;
(iii) Direct care workers at each ICF/
IID; and
(iv) Support staff at each ICF/IID.
(2) Methodology. The State must
provide information according to the
methodology, form, and manner of
reporting stipulated by CMS.
(d) Availability and accessibility
requirements. The State must operate a
website consistent with § 435.905(b) of
this chapter that provides the results of
the reporting requirements specified in
paragraphs (b) and (c) of this section. In
the case of a State that implements a
managed care delivery system under the
authority of sections 1915(a), 1915(b),
1932(a), and/or 1115(a) of the Act and
that includes nursing facility and/or
ICF/IID services in their MCO or PIHP
contracts, the State may meet this
requirement by linking to individual
MCO’s or PIHP’s websites. The State
must:
(1) Include clear and easy to
understand labels on documents and
links;
(2) Verify no less than quarterly, the
accurate function of the website and the
current accuracy of the information and
links; and
(3) Include prominent language on the
website explaining that assistance in
accessing the required information on
the website is available at no cost and
include information on the availability
of oral interpretation in all languages
and written translation available in each
non-English language, how to request
auxiliary aids and services, and a tollfree and TTY/TDY telephone number.
(e) Information reported by States.
CMS must report on its website the
results of the reporting requirements
specified in paragraphs (b) and (c) of
this section that the State reports to
CMS.
(f) Applicability date. States must
comply with the requirements in this
section beginning 4 years after June 21,
2024; and in the case of the State that
implements a managed care delivery
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system under the authority of section
1915(a), 1915(b), 1932(a), or 1115(a) of
the Act and includes nursing facility
services or ICF/IID services, the first
rating period for contracts with the
MCO or PIHP beginning on or after 4
years after June 21, 2024.
PART 483—REQUIREMENTS FOR
STATES AND LONG TERM CARE
FACILITIES
5. The authority citation for part 483
continues to read as follows:
■
Authority: 42 U.S.C. 1302, 1320a–7, 1395i,
1395hh and 1396r.
6. Section 483.5 is amended by adding
the definitions of ‘‘Hours per resident
day’’ and ‘‘Representative of direct care
employees’’ in alphabetical order to
read as follows:
■
§ 483.5
Definitions.
*
*
*
*
*
Hours per resident day. Staffing hours
per resident per day is the total number
of hours worked by each type of staff
divided by the total number of residents
as calculated by CMS.
*
*
*
*
*
Representative of direct care
employees. A representative of direct
care employees is an employee of the
facility or a third party authorized by
direct care employees at the facility to
provide expertise and input on behalf of
the employees for the purposes of
informing a facility assessment.
*
*
*
*
*
■ 7. Section 483.10 is amended by
revising paragraph (h)(3)(i) to read as
follows:
§ 483.10
Resident rights.
*
*
*
*
*
(h) * * *
(3) * * *
(i) The resident has the right to refuse
the release of personal and medical
records except as provided at
§ 483.70(h)(2) or other applicable
Federal or State laws.
*
*
*
*
*
■ 8. Section 483.15 is amended by
revising paragraph (c)(8) to read as
follows:
§ 483.15 Admission, transfer, and
discharge rights.
*
*
*
*
*
(c) * * *
(8) Notice in advance of facility
closure. In the case of facility closure,
the individual who is the administrator
of the facility must provide written
notification prior to the impending
closure to the State Survey Agency, the
Office of the State Long-Term Care
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Ombudsman, residents of the facility,
and the resident representatives, as well
as the plan for the transfer and adequate
relocation of the residents, as required
at § 483.70(k).
*
*
*
*
*
■ 9. Section 483.35 is revised to read as
follows:
§ 483.35
Nursing services.
The facility must have sufficient
nursing staff with the appropriate
competencies and skills sets to provide
nursing and related services to assure
resident safety and attain or maintain
the highest practicable physical, mental,
and psychosocial well-being of each
resident, as determined by resident
assessments and individual plans of
care and considering the number,
acuity, and diagnoses of the facility’s
resident population in accordance with
the facility assessment required at
§ 483.71.
(a) Sufficient staff. (1) The facility
must provide services by sufficient
numbers of each of the following types
of personnel on a 24-hour basis to
provide nursing care to all residents in
accordance with resident care plans:
(i) Except when waived under
paragraph (f) of this section, licensed
nurses; and
(ii) Other nursing personnel,
including but not limited to nurse aides.
(2) Except when waived under
paragraph (f) of this section, the facility
must designate a licensed nurse to serve
as a charge nurse on each tour of duty.
(3) The facility must ensure that
licensed nurses have the specific
competencies and skill sets necessary to
care for residents’ needs, as identified
through resident assessments, and
described in the plan of care.
(4) Providing care includes but is not
limited to assessing, evaluating,
planning, and implementing resident
care plans and responding to resident’s
needs.
(b) Total nurse staffing (licensed
nurses and nurse aides). (1) The facility
must meet or exceed a minimum of 3.48
hours per resident day for total nurse
staffing including but not limited to—
(i) A minimum of 0.55 hours per
resident day for registered nurses; and
(ii) A minimum of 2.45 hours per
resident day for nurse aides.
(2) One or more of the hours per
resident day requirements at paragraph
(b)(1) of this section may be exempted
for facilities found non-compliant and
who meet the eligibility criteria defined
at paragraph (h) of this section as
determined by the Secretary.
(3) Compliance with minimum total
nurse staffing hours per resident day as
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set forth in one or more of the hours per
resident day requirements of paragraph
(b)(1) of this section should not be
construed as approval for a facility to
staff only to these numerical standards.
Facilities must ensure there are a
sufficient number of staff with the
appropriate competencies and skills sets
necessary to assure resident safety and
to attain or maintain the highest
practicable physical, mental, and
psychosocial well-being of each
resident, as determined by resident
assessments, acuity and diagnoses of the
facility’s resident population in
accordance with the facility assessment
at § 483.71.
(c) Registered nurse. (1) Except when
waived or exempted under paragraph
(f), (g), or (h) of this section, the facility
must have a registered nurse (RN) onsite
24 hours per day, for 7 days a week that
is available to provide direct resident
care.
(2) For any periods when the onsite
RN requirements in paragraph (c)(1) of
this section are exempted under
paragraph (h) of this section, facilities
must have a registered nurse, nurse
practitioner, physician assistant, or
physician available to respond
immediately to telephone calls from the
facility.
(3) Except when waived under
paragraph (f) or (g) of this section, the
facility must designate a registered
nurse to serve as the director of nursing
on a full time basis.
(4) The director of nursing may serve
as a charge nurse only when the facility
has an average daily occupancy of 60 or
fewer residents.
(d) Proficiency of nurse aides. The
facility must ensure that nurse aides are
able to demonstrate competency in
skills and techniques necessary to care
for residents’ needs, as identified
through resident assessments, and
described in the plan of care.
(e) Requirements for facility hiring
and use of nursing aides—(1) General
rule. A facility must not use any
individual working in the facility as a
nurse aide for more than 4 months, on
a full-time basis, unless—
(i) That individual is competent to
provide nursing and nursing related
services; and
(ii)(A) That individual has completed
a training and competency evaluation
program, or a competency evaluation
program approved by the State as
meeting the requirements of §§ 483.151
through 483.154; or
(B) That individual has been deemed
or determined competent as provided in
§ 483.150(a) and (b).
(2) Non-permanent employees. A
facility must not use on a temporary, per
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diem, leased, or any basis other than a
permanent employee any individual
who does not meet the requirements in
paragraphs (e)(1)(i) and (ii) of this
section.
(3) Minimum competency. A facility
must not use any individual who has
worked less than 4 months as a nurse
aide in that facility unless the
individual—
(i) Is a full-time employee in a Stateapproved training and competency
evaluation program;
(ii) Has demonstrated competence
through satisfactory participation in a
State-approved nurse aide training and
competency evaluation program or
competency evaluation program; or
(iii) Has been deemed or determined
competent as provided in § 483.150(a)
and (b).
(4) Registry verification. Before
allowing an individual to serve as a
nurse aide, a facility must receive
registry verification that the individual
has met competency evaluation
requirements unless—
(i) The individual is a full-time
employee in a training and competency
evaluation program approved by the
State; or
(ii) The individual can prove that he
or she has recently successfully
completed a training and competency
evaluation program or competency
evaluation program approved by the
State and has not yet been included in
the registry. Facilities must follow up to
ensure that such an individual actually
becomes registered.
(5) Multi-State registry verification.
Before allowing an individual to serve
as a nurse aide, a facility must seek
information from every State registry
established under section 1819(e)(2)(A)
or 1919(e)(2)(A) of the Act that the
facility believes will include
information on the individual.
(6) Required retraining. If, since an
individual’s most recent completion of
a training and competency evaluation
program, there has been a continuous
period of 24 consecutive months during
none of which the individual provided
nursing or nursing-related services for
monetary compensation, the individual
must complete a new training and
competency evaluation program or a
new competency evaluation program.
(7) Regular in-service education. The
facility must complete a performance
review of every nurse aide at least once
every 12 months, and must provide
regular in-service education based on
the outcome of these reviews. In-service
training must comply with the
requirements of § 483.95(g).
(f) Nursing facilities: Waiver of
requirement to provide licensed nurses
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40997
and a registered nurse on a 24-hour
basis. To the extent that a facility is
unable to meet the requirements of
paragraphs (a)(1), (b)(1)(i), and (c)(1) of
this section, a State may waive such
requirements with respect to the facility
if—
(1) The facility demonstrates to the
satisfaction of the State that the facility
has been unable, despite diligent efforts
(including offering wages at the
community prevailing rate for nursing
facilities), to recruit appropriate
personnel;
(2) The State determines that a waiver
of the requirement will not endanger the
health or safety of individuals staying in
the facility;
(3) The State finds that, for any
periods in which licensed nursing
services are not available, a registered
nurse or a physician is obligated to
respond immediately to telephone calls
from the facility;
(4) A waiver granted under the
conditions listed in this paragraph (f) is
subject to annual State review;
(5) In granting or renewing a waiver,
a facility may be required by the State
to use other qualified, licensed
personnel;
(6) The State agency granting a waiver
of such requirements provides notice of
the waiver to the Office of the State
Long-Term Care Ombudsman
(established under section 712 of the
Older Americans Act of 1965) and the
protection and advocacy system in the
State for individuals with a mental
disorder who are eligible for such
services as provided by the protection
and advocacy agency; and
(7) The nursing facility that is granted
such a waiver by a State notifies
residents of the facility and their
resident representatives of the waiver.
(g) SNFs: Waiver of the requirement to
provide services of a registered nurse for
at least 112 hours a week. (1) The
Secretary may waive the requirement
that a SNF provide the services of a
registered nurse for more than 40 hours
a week, including a director of nursing
specified in paragraph (c) of this
section, if the Secretary finds that—
(i) The facility is located in a rural
area and the supply of skilled nursing
facility services in the area is not
sufficient to meet the needs of
individuals residing in the area;
(ii) The facility has one full-time
registered nurse who is regularly on
duty at the facility 40 hours a week; and
(iii) The facility either—
(A) Has only patients whose
physicians have indicated (through
physicians’ orders or admission notes)
that they do not require the services of
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a registered nurse or a physician for a
48-hours period; or
(B) Has made arrangements for a
registered nurse or a physician to spend
time at the facility, as determined
necessary by the physician, to provide
necessary skilled nursing services on
days when the regular full-time
registered nurse is not on duty;
(iv) The Secretary provides notice of
the waiver to the Office of the State
Long-Term Care Ombudsman
(established under section 712 of the
Older Americans Act of 1965) and the
protection and advocacy system in the
State for individuals with
developmental disabilities or mental
disorders; and
(v) The facility that is granted such a
waiver notifies residents of the facility
and their resident representatives of the
waiver.
(2) A waiver of the registered nurse
requirement under paragraph (g)(1) of
this section is subject to annual renewal
by the Secretary.
(h) Hardship exemptions from the
minimum hours per resident day and
registered nurse onsite 24 hours per day,
for 7 days a week requirements. A
facility may be exempted by the
Secretary from one or more of the
requirements of paragraphs (b)(1) and
(c)(1) of this section if a verifiable
hardship exists that prohibits the
facility from achieving or maintaining
compliance. The facility must meet the
four following criteria to qualify for and
receive a hardship exemption:
(1) Location. The facility is located in
an area where the supply of applicable
healthcare staff (RN, nurse aide (NA), or
total nurse staffing, as indicated in
paragraphs (h)(1)(i), (ii), and/or (iii) of
this section) is not sufficient to meet
area needs as evidenced by a provider
to population ratio for nursing
workforce that is a minimum of 20
percent below the national average, as
calculated by CMS, by using data from
the Bureau of Labor Statistics and
Census Bureau.
(i) The facility may receive an
exemption from the total nurse staffing
requirement of 3.48 hours per resident
day at paragraph (b)(1) of this section if
the combined licensed nurse, which
includes both RNs and licensed
vocational nurses (LVN)/licensed
practical nurses (LPNs) and nurse aide
to population ratio in its area is a
minimum of 20 percent below the
national average.
(ii) The facility may receive an
exemption from the 0.55 registered
nurse hours per resident day
requirement at paragraph (b)(1)(i) of this
section and an exemption of 8 hours a
day from the registered nurse on site 24
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hours per day, for 7 days a week
requirement at paragraph (c)(1) of this
section if the registered nurse to
population ratio in its area is a
minimum of 20 percent below the
national average.
(iii) The facility may receive an
exemption from the 2.45 nurse aide
hours per resident day requirement at
paragraph (b)(1)(ii) of this section if the
nurse aide to population ratio in its area
is a minimum of 20 percent below the
national average.
(2) Good faith efforts to hire. The
facility demonstrates that it has been
unable, despite diligent efforts,
including offering at least prevailing
wages, to recruit and retain appropriate
personnel. The information is verified
through:
(i) Job listings in commonly used
recruitment forums found online at
American Job Centers (coordinated by
the U.S. Department of Labor’s
Employment and Training
Administration), and other forums as
appropriate;
(ii) Documented job vacancies
including the number and duration of
the vacancies and documentation of
offers made, including that they were
made at least at prevailing wages;
(iii) Data on the average wages in the
Metropolitan Statistical Area in which
the facility is located and vacancies by
industry as reported by the Bureau of
Labor Statistics or by the State’s
Department of Labor; and
(iv) The facility’s staffing plan in
accordance with § 483.71(b)(4); and
(3) Demonstrated financial
commitment. The facility demonstrates
through documentation the amount of
financial resources that the facility
expends on nurse staffing relative to
revenue.
(4) Disclosure of exemption status.
The facility:
(i) Posts, in a prominent location in
the facility, and in a form and manner
accessible and understandable to
residents, and resident representatives,
a notice of the facility’s exemption
status, the extent to which the facility
does not meet the minimum staffing
requirements, and the timeframe during
which the exemption applies; and
(ii) Provides to each resident or
resident representative, and to each
prospective resident or resident
representative, a notice of the facility’s
exemption status, including the extent
to which the facility does not meet the
staffing requirements, the timeframe
during which the exemption applies,
and a statement reminding residents of
their rights to contact advocacy and
oversight entities, as provided in the
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notice provided to them under
§ 483.10(g)(4); and
(iii) Sends a copy of the notice to a
representative of the Office of the State
Long-Term Care Ombudsman.
(5) Exclusions. Facilities must not:
(i) Be a Special Focus Facility,
pursuant to the Special Focus Facility
Program established under sections
1819(f)(8) and 1919(f)(10) of the Act; or
(ii) Have been cited for having
widespread insufficient staffing with
resultant resident actual harm or a
pattern of insufficient staffing with
resultant resident actual harm, or cited
at the immediate jeopardy level of
severity with respect to insufficient
staffing as determined by CMS, within
the 12 months preceding the survey
during which the facility’s noncompliance is identified; or
(iii) Have failed to submit Payroll
Based Journal data in accordance with
§ 483.70(p).
(6) Determination of eligibility. The
Secretary, through CMS or the State,
will determine eligibility for an
exemption based on the criteria in
paragraphs (h)(1) through (5) of this
section. The facility must provide
supporting documentation when
requested.
(7) Timeframe. The term for a
hardship exemption is from grant of
exemption until the next standard
recertification survey, unless the facility
becomes a Special Focus Facility, is
cited for widespread insufficient staffing
with resultant resident actual harm or a
pattern of insufficient staffing with
resultant resident actual harm, or is
cited at the immediate jeopardy level of
severity with respect to insufficient
staffing as determined by CMS, or fails
to submit Payroll Based Journal data in
accordance with § 483.70(p). A hardship
exemption may be extended on each
standard recertification survey, after the
initial period, if the facility continues to
meet the exemption criteria in
paragraphs (h)(1) through (5) of this
section, as determined by the Secretary.
(i) Nurse staffing information—(1)
Data requirements. The facility must
post the following information on a
daily basis:
(i) Facility name.
(ii) The current date.
(iii) The total number and the actual
hours worked by the following
categories of licensed and unlicensed
nursing staff directly responsible for
resident care per shift:
(A) Registered nurses.
(B) Licensed practical nurses or
licensed vocational nurses (as defined
under State law).
(C) Certified nurse aides.
(iv) Resident census.
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(2) Posting requirements. (i) The
facility must post the nurse staffing data
specified in paragraph (i)(1) of this
section on a daily basis at the beginning
of each shift.
(ii) Data must be posted as follows:
(A) Clear and readable format.
(B) In a prominent place readily
accessible to residents, staff, and
visitors.
(3) Public access to posted nurse
staffing data. The facility must, upon
oral or written request, make nurse
staffing data available to the public for
review at a cost not to exceed the
community standard.
(4) Facility data retention
requirements. The facility must
maintain the posted daily nurse staffing
data for a minimum of 18 months, or as
required by State law, whichever is
greater.
■ 10. Section 483.40 is amended by
revising paragraphs (a) introductory
text, (a)(1), and (c)(2) to read as follows:
§ 483.40
Behavioral health services.
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*
*
*
*
*
(a) The facility must have sufficient
staff who provide direct services to
residents with the appropriate
competencies and skills sets to provide
nursing and related services to assure
resident safety and attain or maintain
the highest practicable physical, mental
and psychosocial well-being of each
resident, as determined by resident
assessments and individual plans of
care and considering the number, acuity
and diagnoses of the facility’s resident
population in accordance with § 483.71.
These competencies and skills sets
include, but are not limited to,
knowledge of and appropriate training
and supervision for:
(1) Caring for residents with mental
and psychosocial disorders, as well as
residents with a history of trauma and/
or post-traumatic stress disorder, that
have been identified in the facility
assessment conducted pursuant to
§ 483.71; and
*
*
*
*
*
(c) * * *
(2) Obtain the required services from
an outside resource (in accordance with
§ 483.70(f)) from a Medicare and/or
Medicaid provider of specialized
rehabilitative services.
*
*
*
*
*
■ 11. Section 483.45 is amended by
revising the introductory text to read as
follows:
§ 483.45
Pharmacy services.
The facility must provide routine and
emergency drugs and biologicals to its
residents, or obtain them under an
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agreement described in § 483.70(f). The
facility may permit unlicensed
personnel to administer drugs if State
law permits, but only under the general
supervision of a licensed nurse.
*
*
*
*
*
■ 12. Section 483.55 is amended by
revising paragraphs (a) introductory
text, (a)(1), (b) introductory text, and
(b)(1) introductory text to read as
follows:
§ 483.55
Dental services.
*
*
*
*
*
(a) Skilled nursing facilities. A
facility:
(1) Must provide or obtain from an
outside resource, in accordance with
§ 483.70(f), routine and emergency
dental services to meet the needs of
each resident;
*
*
*
*
*
(b) Nursing facilities. The facility:
(1) Must provide or obtain from an
outside resource, in accordance with
§ 483.70(f), the following dental services
to meet the needs of each resident:
*
*
*
*
*
■ 13. Section 483.60 is amended by
revising paragraph (a) introductory text
to read as follows:
§ 483.60
Food and nutrition services.
*
*
*
*
*
(a) Staffing. The facility must employ
sufficient staff with the appropriate
competencies and skills sets to carry out
the functions of the food and nutrition
service, taking into consideration
resident assessments, individual plans
of care and the number, acuity and
diagnoses of the facility’s resident
population in accordance with the
facility assessment required at § 483.71.
This includes:
*
*
*
*
*
■ 14. Section 483.65 is amended by
revising paragraph (a)(2) to read as
follows:
§ 483.65 Specialized rehabilitative
services.
(a) * * *
(2) In accordance with § 483.70(f),
obtain the required services from an
outside resource that is a provider of
specialized rehabilitative services and is
not excluded from participating in any
Federal or State health care programs
pursuant to section 1128 and 1156 of
the Act.
*
*
*
*
*
§ 483.70
■
■
[Amended]
15. Section 483.70 is amended by—
a. Removing paragraph (e); and
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40999
b. Redesignating paragraphs (f)
through (q) as paragraphs (e) through
(p), respectively.
■ 16. Add § 483.71 to subpart B to read
as follows:
■
§ 483.71
Facility assessment.
The facility must conduct and
document a facility-wide assessment to
determine what resources are necessary
to care for its residents competently
during both day-to-day operations
(including nights and weekends) and
emergencies. The facility must review
and update that assessment, as
necessary, and at least annually. The
facility must also review and update
this assessment whenever there is, or
the facility plans for, any change that
would require a substantial
modification to any part of this
assessment.
(a) The facility assessment must
address or include the following:
(1) The facility’s resident population,
including, but not limited to:
(i) Both the number of residents and
the facility’s resident capacity;
(ii) The care required by the resident
population, using evidence-based, datadriven methods that consider the types
of diseases, conditions, physical and
behavioral health needs, cognitive
disabilities, overall acuity, and other
pertinent facts that are present within
that population, consistent with and
informed by individual resident
assessments as required under § 483.20;
(iii) The staff competencies and skill
sets that are necessary to provide the
level and types of care needed for the
resident population;
(iv) The physical environment,
equipment, services, and other physical
plant considerations that are necessary
to care for this population; and
(v) Any ethnic, cultural, or religious
factors that may potentially affect the
care provided by the facility, including,
but not limited to, activities and food
and nutrition services.
(2) The facility’s resources, including
but not limited to the following:
(i) All buildings and/or other physical
structures and vehicles;
(ii) Equipment (medical and nonmedical);
(iii) Services provided, such as
physical therapy, pharmacy, behavioral
health, and specific rehabilitation
therapies;
(iv) All personnel, including
managers, nursing and other direct care
staff (both employees and those who
provide services under contract), and
volunteers, as well as their education
and/or training and any competencies
related to resident care;
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(v) Contracts, memorandums of
understanding, or other agreements with
third parties to provide services or
equipment to the facility during both
normal operations and emergencies; and
(vi) Health information technology
resources, such as systems for
electronically managing patient records
and electronically sharing information
with other organizations.
(3) A facility-based and communitybased risk assessment, utilizing an allhazards approach as required in
§ 483.73(a)(1).
(b) In conducting the facility
assessment, the facility must ensure:
(1) Active involvement of the
following participants in the process:
(i) Nursing home leadership and
management, including but not limited
to, a member of the governing body, the
medical director, an administrator, and
the director of nursing; and
(ii) Direct care staff, including but not
limited to, RNs, LPNs/LVNs, NAs, and
representatives of the direct care staff, if
applicable.
(iii) The facility must also solicit and
consider input received from residents,
resident representatives, and family
members.
(2) [Reserved]
(c) The facility must use this facility
assessment to:
(1) Inform staffing decisions to ensure
that there are a sufficient number of staff
with the appropriate competencies and
skill sets necessary to care for its
residents’ needs as identified through
resident assessments and plans of care
as required in § 483.35(a)(3).
(2) Consider specific staffing needs for
each resident unit in the facility and
adjust as necessary based on changes to
its resident population.
(3) Consider specific staffing needs for
each shift, such as day, evening, night,
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20:37 May 09, 2024
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and adjust as necessary based on any
changes to its resident population.
(4) Develop and maintain a plan to
maximize recruitment and retention of
direct care staff.
(5) Inform contingency planning for
events that do not require activation of
the facility’s emergency plan, but do
have the potential to affect resident care,
such as, but not limited to, the
availability of direct care nurse staffing
or other resources needed for resident
care.
■ 17. Section 483.75 is amended by
revising paragraphs (c)(2) and (e)(3) to
read as follows:
§ 483.75 Quality assurance and
performance improvement.
*
*
*
*
*
(c) * * *
(2) Facility maintenance of effective
systems to identify, collect, and use data
and information from all departments,
including but not limited to the facility
assessment required at § 483.71 and
including how such information will be
used to develop and monitor
performance indicators.
*
*
*
*
*
(e) * * *
(3) As a part of their performance
improvement activities, the facility must
conduct distinct performance
improvement projects. The number and
frequency of improvement projects
conducted by the facility must reflect
the scope and complexity of the
facility’s services and available
resources, as reflected in the facility
assessment required at § 483.71.
Improvement projects must include at
least annually a project that focuses on
high risk or problem-prone areas
identified through the data collection
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and analysis described in paragraphs (c)
and (d) of this section.
*
*
*
*
*
■ 18. Section 483.80 is amended by
revising paragraph (a)(1) to read as
follows:
§ 483.80
Infection control.
*
*
*
*
*
(a) * * *
(1) A system for preventing,
identifying, reporting, investigating, and
controlling infections and
communicable diseases for all residents,
staff, volunteers, visitors, and other
individuals providing services under a
contractual arrangement based upon the
facility assessment conducted according
to § 483.71 and following accepted
national standards.
*
*
*
*
*
■ 19. Section 483.95 is amended by
revising the introductory text to read as
follows:
§ 483.95
Training requirements.
A facility must develop, implement,
and maintain an effective training
program for all new and existing staff;
individuals providing services under a
contractual arrangement; and
volunteers, consistent with their
expected roles. A facility must
determine the amount and types of
training necessary based on a facility
assessment as specified at § 483.71.
Training topics must include but are not
limited to—
*
*
*
*
*
Xavier Becerra,
Secretary, Department of Health and Human
Services.
[FR Doc. 2024–08273 Filed 4–22–24; 4:15 pm]
BILLING CODE 4120–01–P
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]]>Agencies
[Federal Register Volume 89, Number 92 (Friday, May 10, 2024)]
[Rules and Regulations]
[Pages 40876-41000]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-08273]
[[Page 40875]]
Vol. 89
Friday,
No. 92
May 10, 2024
Part III
Department of Health and Human Services
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Centers for Medicare & Medicaid Services
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42 CFR Parts 438, 442, and 483
Medicare and Medicaid Programs; Minimum Staffing Standards for Long-
Term Care Facilities and Medicaid Institutional Payment Transparency
Reporting; Final Rule
Federal Register / Vol. 89, No. 92 / Friday, May 10, 2024 / Rules and
Regulations
[[Page 40876]]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Centers for Medicare & Medicaid Services
42 CFR Parts 438, 442, and 483
[CMS-3442-F]
RIN 0938-AV25
Medicare and Medicaid Programs; Minimum Staffing Standards for
Long-Term Care Facilities and Medicaid Institutional Payment
Transparency Reporting
AGENCY: Centers for Medicare & Medicaid Services (CMS), Department of
Health and Human Services (HHS).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This final rule establishes minimum staffing standards for
long-term care facilities, as part of the Biden-Harris Administration's
nursing home reform initiative to ensure safe and quality care in long-
term care facilities. In addition, this rule requires States to report
the percent of Medicaid payments for certain Medicaid-covered
institutional services that are spent on compensation for direct care
workers and support staff.
DATES:
Effective date: These regulations are effective on June 21, 2024.
Implementation date: Except as set forth in this section, these
regulations must be implemented upon the effective date.
The regulations at Sec. 483.71 must be implemented by
August 8, 2024, for all facilities.
The regulations at Sec. 483.35(b)(1) and (c)(1) must be
implemented by May 11, 2026, for non-rural facilities and May 10, 2027,
for rural facilities as defined by the Office of Management and Budget.
The regulations at Sec. 483.35(b)(1)(i) and (ii) must be
implemented by May 10, 2027, for non-rural facilities and May 10, 2029,
for rural facilities as defined by the Office of Management and Budget.
The regulations at Sec. Sec. 438.72(a) and 442.43 must be
implemented by all States and territories with Medicaid-certified
nursing facilities and intermediate care facilities for individuals
with intellectual disabilities beginning May 10, 2028.
FOR FURTHER INFORMATION CONTACT: The Clinical Standard Group's Long
Term Care Team at [email protected] for information
related to the minimum staffing standards.
Anne Blackfield, (410) 786-8518, for information related to
Medicaid institutional payment transparency reporting.
SUPPLEMENTARY INFORMATION: To assist readers in referencing sections
contained in this document, we are providing the following Table of
Contents.
Table of Contents
I. Executive Summary
A. Purpose
B. Summary of Provisions
C. Summary of Cost and Benefits
II. Minimum Staffing Standards for Long-Term Care Facilities in
Response to the Presidential Initiative
A. Background
B. Provisions of the Proposed Regulations and Analysis of and
Response to Public Comments
1. General Comments
2. Definitions
3. Minimum Staffing Standards
4. Registered Nurse 24 Hours per Day, 7 Days a Week
5. Hardship Exemption
6. Facility Assessment
7. Implementation Timeframe
8. Severability Clause
C. Consultation With State Agencies and Other Organizations
III. Medicaid Institutional Payment Transparency Reporting Provision
IV. Provisions of the Final Regulations
V. Collection of Information Requirements
VI. Response to Comments
VII. Regulatory Impact Analysis
I. Executive Summary
A. Purpose
This final rule establishes minimum staffing standards to address
ongoing safety and quality concerns for the 1.2 million \1\ residents
receiving services in Medicare and Medicaid certified Long-Term Care
(LTC) facilities each day. As we have heard from residents, staff, and
advocates across the country in response to the proposed rule, ensuring
adequate staffing levels is essential to the safety and quality of
long-term care facilities. On February 28, 2022, President Biden
announced that CMS would establish minimum staffing standards that
nursing homes must meet, based in part on evidence from a new research
study that would focus on the level and type of staffing needed to
ensure safe and quality care.\2\ This announcement was part of an
overall reform plan to improve the quality and safety of nursing homes.
In addition, on April 18, 2023, President Biden issued Executive Order
14095, ``Increasing Access to High-Quality Care and Supporting
Caregivers,'' \3\ which directs the Secretary of HHS to consider
actions to reduce nursing staff turnover, which is associated with
negative impacts on safety and quality of care.4 5 On
September 6, 2023, we published the ``Medicare and Medicaid programs;
Minimum Staffing Standards for Long-Term Care Facilities and Medicaid
Institutional Payment Transparency Reporting'' \6\ proposed rule
(referred to as the ``proposed rule'').
---------------------------------------------------------------------------
\1\ https://data.cms.gov/provider-data/dataset/4pq5-n9py.
\2\ https://www.whitehouse.gov/briefing-room/statements-releases/2022/02/28/fact-sheet-protecting-seniors-and-people-with-disabilities-by-improving-safety-and-quality-of-care-in-the-nations-nursing-homes/.
\3\ E.O. 14095, 88 FR 24669 (Apr. 21, 2023).
\4\ Zheng, Q, Williams, CS, Shulman, ET, White, AJ. Association
between staff turnover and nursing home quality--evidence from
payroll-based journal data. J Am Geriatr Soc. 2022; 70(9): 2508-
2516. doi:10.1111/jgs.17843.
\5\ Castle, Nicholas G, and John Engberg. ``Staff turnover and
quality of care in nursing homes.'' Medical care vol. 43,6 (2005):
616-26. doi:10.1097/01.mlr.0000163661.67170.b9.
\6\ 88 FR 61352 through 61429.
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The safety and quality concerns identified by the President stem,
at least in part, from chronic understaffing in LTC facilities, and are
particularly associated with insufficient numbers of registered nurses
(RNs) and nurse aides (NAs), as evidenced from, among other things, a
review of data collected since 2016 and lessons learned during the
COVID-19 Public Health Emergency (PHE). Numerous studies, including a
new research study commissioned by CMS as well as existing literature,
have shown that staffing levels are closely correlated with the quality
of care that LTC facility residents receive as well as with improved
health outcomes. Higher staffing levels also provide staff in LTC
facilities the support they need to safely care for residents. Minimum
staffing standards can thus help prevent staff burnout, thereby
reducing staff turnover, which can lead to more consistent care and
improved safety and quality for residents and staff. This final rule
also promotes public transparency related to the percent of Medicaid
payments for certain institutional services that are spent on
compensation to direct care workers and support staff.
B. Summary of Provisions
We are updating the Federal ``Requirements for Medicare and
Medicaid Long Term Care Facilities'' minimum staffing standards (``LTC
requirements''). We will survey facilities for compliance with the
updated LTC requirements in the rule and enforce them as part of CMS's
existing survey, certification, and enforcement process for LTC
facilities. In addition, consistent with the President's reform plan,
we will display our determinations of
[[Page 40877]]
facility compliance with the minimum staffing standards on Care Compare
\7\ and require facilities to post a public notice within the facility
if they are out of compliance with the standards so it is easily
visible for staff and residents.
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\7\ https://www.medicare.gov/care-compare/?redirect=true&providerType=NursingHome.
---------------------------------------------------------------------------
We are establishing Federal minimum nurse staffing standards for a
number of reasons, including the growing body of evidence demonstrating
the importance of staffing to resident health and safety, continued
insufficient staffing, non-compliance by a subset of facilities, the
need to create a consistent floor to reduce variability in the minimum
floor for nurse-to-resident ratios across States, the need to support
nursing home staff, and, most importantly, to reduce the risk of
residents receiving unsafe and low-quality care.
The regulatory updates are based on evidence we collected using a
multifaceted approach, informed by multiple sources of information,
including the 2022 Nursing Home Staffing Study; more than 3,000 public
comment submissions from the Fiscal Year 2023 Skilled Nursing Facility
Prospective Payment System proposed rule (FY2023 SNF PPS) request for
information (RFI); academic and other literature; Payroll Based Journal
(PBJ) System data; detailed listening sessions with residents and their
families, workers, health care providers, and advocacy groups; and
analyzing the 46,520 comments received on the proposed rule.
Specifically, in the final rule, we are revising Sec. 483.35(b) to
require an RN to be on site 24 hours per day and 7 days per week (24/7
RN) to provide skilled nursing care to all residents in accordance with
resident care plans, with an exemption from 8 hours per day of the
onsite RN requirement under certain circumstances. Requirements for
this exemption are consistent with the requirements for other waivers
and exemptions set forth in the LTC requirements. We are also adopting
total nurse staffing and individual minimum nurse staffing standards,
based on case-mix adjusted data for RNs and NAs, to supplement the
existing ``Nursing Services'' requirements at 42 CFR 483.35(a)(1)(i)
and (ii). We are specifying that facilities must provide, at a minimum,
3.48 total nurse staffing hours per resident day (HPRD) of nursing
care, with 0.55 RN HPRD and 2.45 NA HPRD. We are defining ``hours per
resident day'' as staffing hours per resident per day which is the
total number of hours worked by each type of staff divided by the total
number of residents as calculated by CMS. We note that while the 3.48
total nurse staffing, 0.55 RN, and 2.45 NA HPRD standards were
developed using case-mix adjusted data sources, the standards
themselves will be implemented and enforced independent of a facility's
case-mix. In other words, facilities must meet the minimum 3.48 total
nurse staffing, 0.55 RN, and 2.45 NA HPRD standards regardless of the
individual facility's resident case-mix, as they are the minimum
standard of staffing. If the acuity needs of residents in a facility
require a higher level of care, as the acuity needs in many facilities
will, a higher total, RN, and NA staffing level will likely be
required. As further described below, the minimum staffing standard is
supported by literature evidence, analysis of staffing data and health
outcomes, discussions with residents, staff, and industry \8\ and other
factors.
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\8\ Abt Associates. (2022). Nursing Home Staffing Study
Comprehensive report. Report prepared for the Centers for Medicare &
Medicaid Services. https://edit.cms.gov/files/document/nursing-home-staffing-study-final-report-appendix-june-2023.pdf.
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Each of the minimum staffing requirements independently supports
resident health and safety and is evaluated separately. Therefore,
compliance with the 24/7 RN requirement does not simultaneously
constitute compliance with the minimum 3.48 HPRD total nurse staffing
standard, the 0.55 RN HPRD, or the 2.45 NA HPRD requirements or vice
versa. Similarly, but separately, a minimum number of total nurse
staffing including RN and NA hours per resident per day improves
overall quality of care. Both independently and collaboratively, these
requirements and the totality of the LTC requirements for
participation, will support compliance with statutory mandates to
provide services to attain or maintain the highest practicable
physical, mental, and psychosocial well-being of each resident, in
accordance with a written plan of care.
The resulting, evidence-based final rule appropriately prioritizes
quality and safety of care gains from establishing minimum standards
for nurse staffing, including RNs and NAs, with a particular emphasis
on the direct care delivered at the bedside, and effective
implementation of these new requirements. These new required minimum
staffing requirements will increase staffing in more than 79 percent of
nursing facilities nationwide,\9\ and the specific RN and NA HPRD
requirements exceed the existing minimum staffing requirements in
nearly all States.\10\ We remain committed to continued examination of
staffing thresholds, including careful work to review quality and
safety data resulting from initial implementation of the final rule and
robust public engagement. Should subsequent data indicate that
additional increases to staffing minimums are warranted and feasible,
we anticipate that we will revisit the minimum staffing standards to
shift them toward the higher ranges supported by the evidence, with
continued consideration of all relevant factors.
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\9\ PBJ data from the October 2021 Nursing Home Care Compare
data set.
\10\ Based on information in the staffing study report appendix
E2 all States with the exception of 2 have a total staffing HPRD
greater than 3.48 or for RN greater than .55HPRD (source: PBJ data
Average 2022 Q1 nursing staffing levels by State).
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We are also revising the existing Facility Assessment requirements
at Sec. 483.70(e). We are redesignating the provisions at Sec.
483.70(e) to a standalone section at Sec. 483.71. We are further
modifying the requirements to ensure that facilities have an efficient
process for consistently assessing and documenting the necessary
resources and staff that the facility requires to provide ongoing care
for its population that is based on the specific needs of its
residents.
As we indicated in the proposed rule, we are finalizing a staggered
implementation of these requirements over a period of up to 5 years for
rural facilities and 3 years for non-rural facilities to allow all
facilities the time needed to prepare and comply with the new
requirements.
Exemption from the minimum standards of 0.55 HPRD for RNs, 2.45
HPRD for NAs and 3.48 HPRD for total nurse staffing, and the 8-hours
per day of the 24/7 RN onsite requirement would be available only in
limited circumstances. In order to qualify for an exemption, a facility
must meet the following criteria: (1) the workforce is unavailable as
measured by having a nursing workforce per labor category that is a
minimum of 20 percent below the national average for the applicable
nurse staffing type, as calculated by CMS, by using the Bureau of Labor
Statistics and Census Bureau data; \11\ (2) the facility is making a
good faith effort to hire and retain staff; (3) the facility provides
documentation of its financial commitment to staffing; (4) the facility
posts a notice of its exemption status in a prominent and publicly
viewable location in each resident facility; and (5) the facility
provides individual notice of its exemption status and the degree to
[[Page 40878]]
which it is not in compliance with the HPRD requirements to each
current and prospective resident and sends a copy of the notice to a
representative of the Office of the State Long-Term Care Ombudsman. If
the exemption is granted, CMS will post on Care Compare a notice of its
exemption status and the degree to which it is not in compliance with
the requirements.
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\11\ For example, Hospital Review at https://www.beckershospitalreview.com/workforce/nurses-per-capita-ranked-by-state.html.
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A facility will be excluded from being eligible to receive an
exemption if it: (1) has failed to submit PBJ data in accordance with
re-designated Sec. 483.70(p); (2) is a Special Focus Facility (SFF);
(3) has been cited for widespread insufficient staffing with resultant
resident actual harm or a pattern of insufficient staffing with
resultant resident actual harm, as determined by CMS; or (4) has been
cited at the ``immediate jeopardy'' level of severity with respect to
insufficient staffing within the 12 months preceding the survey during
which the facility's non-compliance is identified. We note that the
existing statutory waiver for all RN hours over 40 hours per week will
still be available as required by sections 1819(b)(4)(C)(ii) and
1919(b)(4)(C)(ii) of the Act, as this rule does not purport to
eliminate or modify the existing statutory waiver.
As with other LTC requirements for participation, enforcement
actions, also called remedies, may be taken against facilities that are
not in substantial compliance with these Federal participation
requirements under 42 CFR part 488, subpart F. The remedies that may be
imposed include, but are not limited to, the termination of the
provider agreement, denial of payment for new admissions, and/or civil
money penalties.
We also proposed, and are finalizing, new regulations at 42 CFR
442.43 (with a cross-reference at 42 CFR 438.72) to require that State
Medicaid agencies report on the percent of payments for Medicaid-
covered services in nursing facilities and intermediate care facilities
for individuals with intellectual disabilities (ICFs/IID) that are
spent on compensation for direct care workers and support staff. This
requirement is designed to inform efforts to address the link between
sufficient payments being received by the institutional direct care and
support staff workforce and access to and, ultimately, the quality of
services received by Medicaid beneficiaries. In addition, the
requirements being finalized in this final rule are consistent with
efforts to address the sufficiency of payments for home and community-
based services (HCBS) to direct care workers and access to and the
quality of services received by beneficiaries of HCBS finalized in the
Ensuring Access to Medicaid Services final rule published elsewhere in
this Federal Register. As finalized, States will have to comply with
these requirements beginning 4 years from the effective date of this
final rule.
C. Summary of Cost and Benefits
[GRAPHIC] [TIFF OMITTED] TR10MY24.081
[[Page 40879]]
II. Minimum Staffing Standards for Long-Term Care Facilities
A. Background
1. Statutory Authority and Regulatory Requirements for Direct Care
Nurse Staffing in Long-Term-Care (LTC) Facilities
Sections 1819 and 1919 of the Social Security Act (the Act) set out
regulatory requirements for Medicare and Medicaid long-term care
facilities, respectively. Specific statutory language at sections
1819(d)(4)(B) and 1919(d)(4)(B) of the Act permits the Secretary of the
Department of Health and Human Services (the Secretary) to establish
any additional requirements relating to the health, safety, and well-
being \12\ of residents in skilled nursing facilities (SNF) and nursing
facilities (NF), as the Secretary finds necessary. This provision and
other statutory authorities set out in section 1819 and 1919 of the Act
provide CMS with the authority to issue a regulation revising the
existing requirements and to mandate a staffing minimum for nursing
care.
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\12\ Section 1819(d)(4)(B) of the Act contains the word ``well-
being'', which does not appear in section 1919(d)(4)(B). We do not
interpret the presence of this word as requiring separate regulatory
treatment of Medicare and Medicaid long term care facilities.
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Under sections 1866 and 1902 of the Act, providers of services in
Long Term Care (LTC) facilities seeking to participate in the Medicare
or Medicaid program, or both, must enter into an agreement with the
Secretary or the State Medicaid agency, respectively. In order to be
certified to participate in Medicare and Medicaid programs, prospective
and existing providers of services must meet and continue to meet all
applicable Federal participation requirements. These Federal
participation requirements are the basis for survey activities in LTC
facilities for ensuring that residents' minimum health and safety
requirements are met and maintained, as well as for facilities to
receive payment and remain in the Medicare or Medicaid program or both.
LTC facilities include SNFs for Medicare and NFs for Medicaid. The
Federal participation requirements for SNFs, NFs, or dually certified
(SNF/NF) facilities, are codified in the implementing regulations at 42
CFR part 483, subpart B.
In addition to those provisions, sections 1819(b)(1)(A) and
1919(b)(1)(A) of the Act require that a SNF or NF must care for its
residents in such a manner and in such an environment as will promote
maintenance or enhancement of the safety and quality of life of each
resident. Section 1819(b)(4)(C)(i) of the Act requires that a SNF must
provide 24-hour licensed nursing services, sufficient to meet the
nursing needs of its residents, and must use the services of a
registered professional nurse at least 8 consecutive hours a day. These
provisions are largely paralleled at section 1919(b)(4)(C)(i) of the
Act for NFs. Sections 1819(f)(1) and 1919(f)(1) of the Act require that
the Secretary assure that requirements that govern the provision of
care in skilled nursing facilities under this title, and the
enforcement of such requirements, are adequate to protect the health,
safety, welfare, and rights of residents and to promote the effective
and efficient use of public moneys.
In addition, sections 1819(b)(2) and 1919(b)(2) of the Act require
that a SNF or NF provide services to attain or maintain the highest
practicable physical, mental, and psychosocial well-being of each
resident, in accordance with a written plan of care. The plan of care
must describe the medical, nursing, and psychosocial needs of the
resident and how the needs will be met. The plan of care is developed
with the resident or resident's family or legal representative, and by
a team which includes the resident's attending physician and an RN with
responsibility for the resident. The plan of care should be
periodically reviewed and revised by the team after required
assessments. Sections 1819(b)(3) and 1919(b)(3) of the Act require that
a SNF or NF conduct a comprehensive, accurate, standardized,
reproducible assessment of each resident's functional capacity.
Assessments are required to be conducted or coordinated by a registered
nurse at specified frequencies.\13\
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\13\ https://www.ecfr.gov/current/title-42/chapter-IV/subchapter-G/part-483#483.70.
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The participation requirements for LTC facilities (Federal
requirements) are set forth at Sec. Sec. 483.1 through 483.95. In
general, the health and safety standards for LTC facilities address
facility administration, resident rights, care planning, quality
assessment, performance improvement, services provided, emergency
preparedness, as well as staffing requirements. Federal requirements
state that LTC facilities must use the services of a registered nurse
(RN) for at least 8 consecutive hours a day, 7 days a week (Sec.
483.35(b)(1)), and must provide the services of ``sufficient numbers''
of licensed nurses and other nursing personnel, which includes but is
not limited to nurse aides (NAs), 24 hours a day to provide nursing
care to all residents in accordance with the resident care plans (Sec.
483.35(a)(1)). The LTC facility must also designate an RN to serve as
the director of nursing (DON) on a full-time basis (Sec.
483.35(b)(2)).
While these Federal requirements do specify a specific number of
hours that these licensed nurses and other nursing personnel must be
available, there is no requirement that those hours be specifically
dedicated to direct resident care. With respect to staffing
requirements specific to individual residents, such as RN staffing
levels per resident, Federal regulations currently require that
facilities provide staff sufficient to ``assure resident safety and
attain or maintain the highest practicable physical, mental, and
psychosocial well-being of each resident''.
2. The Need for a Minimum Nurse Staffing Requirement in LTC Facilities
On October 4, 2016, we issued a final rule titled ``Medicare and
Medicaid Programs; Reform of Requirements for Long-Term Care
Facilities'' (81 FR 68688). This final rule significantly revised the
list of requirements that LTC facilities must meet to participate in
the Medicare and Medicaid programs. As part of this 2016 final rule, we
revised the LTC requirements to include competency requirements for
determining the sufficiency of nursing staff, based on a facility
assessment requirement that LTC facilities must conduct to determine
what resources are needed to competently care for their residents
during both day-to-day operations and emergencies. Prior to issuing
this final rule, in August 2015 we mandated the requirement for LTC
facilities to submit direct care staffing information based on payroll
data to CMS as part of the ``Medicare Program; Prospective Payment
System and Consolidated Billing for Skilled Nursing Facilities for FY
2016, SNF Value-Based Purchasing Program, SNF Quality Reporting
Program, and Staffing Data Collection final rule'' (80 FR 46390).\14\
In the 2015 Reform of Requirements for Long-Term Care Facilities
proposed rule, we included a robust discussion regarding the long-
standing interest in increasing the required hours of nurse staffing
per day and the various literature surrounding the issue of minimum
nurse staffing standards in LTC facilities (see 80 FR 42199). Since
[[Page 40880]]
issuing the 2016 final rule and establishing a competency-based
approach to staffing in the list of LTC requirements, we have collected
several years of mandated PBJ System data, which was unavailable at the
time, and new evidence from the literature.
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\14\ Medicare Program; SNF PPS FY 2016 Final Rule. https://www.federalregister.gov/documents/2015/08/04/2015-18950/medicare-program-prospective-payment-system-and-consolidated-billing-for-skilled-nursing-facilities.
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Additionally, as a part of the FY 2023 Skilled Nursing Facility
Prospective Payment System Proposed Rule Request for Information (FY
2023 SNF PPS RFI) commenters provided examples of ongoing quality and
safety concerns within LTC facilities.\15\ These included, but were not
limited to, residents going entire shifts without receiving toileting
or multiple days without bathing assistance, increases in falls,
residents not receiving basic feeding or changing services, and even
abuse in cases where no one was watching. The 2022 Nursing Home
Staffing Study \16\ corroborated these comments and identified that
basic care tasks, such as bathing, toileting, and mobility assistance,
are often delayed when LTC facilities are understaffed, which is not
sufficient to meet the nursing needs of residents. Interviews with
various nurse staff highlighted ongoing concerns that care is often
rushed, including for high-acuity residents, which can often lead to
errors or safety issues. We refer readers to the proposed rule for a
detailed discussion of the concerns highlighted in interviews as part
of the 2022 Staffing Study (88 FR 61359).\17\
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\15\ Medicare Program; Prospective Payment System and
Consolidated Billing for Skilled Nursing Facilities; Updates to the
Quality Reporting Program and Value-Based Purchasing Program for
Federal Fiscal Year 2023; Request for Information on Revising the
Requirements for Long-Term Care Facilities To Establish Mandatory
Minimum Staffing Levels. 87 FR 22720, April 15, 2022 (https://www.federalregister.gov/documents/2022/04/15/2022-07906/medicare-program-prospective-payment-system-and-consolidated-billing-for-skilled-nursing-facilities).
\16\ Abt Associates. (2022). Nursing Home Staffing Study
Comprehensive report. Report prepared for the Centers for Medicare &
Medicaid Services. https://edit.cms.gov/files/document/nursing-home-staffing-study-final-report-appendix-june-2023.pdf.
\17\ https://www.federalregister.gov/documents/2023/09/06/2023-18781/medicare-and-medicaid-programs-minimum-staffing-standards-for-long-term-care-facilities-and-medicaid.
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The academic literature also suggests the importance of adequate
staffing in LTC facilities. In a 2021 study, where interview data were
examined, and multivariate analyses of resident outcomes were
conducted, the authors concluded that higher total nurse staffing had a
significant correlation with a decreased number of pressure ulcers, an
increase in influenza vaccination, an increase in pneumonia
vaccination, and a decreased number of outpatient emergency department
visits.\18\ Some studies have demonstrated that increased staffing
levels were specifically beneficial to vulnerable subpopulations in
nursing homes, such as residents with dementia or Alzheimer's disease.
One cross sectional study of long-stay residents with Alzheimer's
disease and related dementias found that residents in nursing homes
that had higher licensed nurse staffing levels had better end-of-life
care and were less likely to experience potentially avoidable
hospitalizations.\19\
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\18\ Wagner, L.M., Katz, P., Karuza, J., Kwong, C., Sharp, L., &
Spetz, J. (2021). Medical staffing organization and quality of care
outcomes in post- acute care settings. Gerontologist, 61(4),605-614.
\19\ Jessica Orth, Yue Li, Adam Simning, Sheryl Zimmerman,
Helena Temkin-Greener, End-of-Life Care among Nursing Home Residents
with Dementia Varies by Nursing Home and Market Characteristics
Journal of the American Medical Directors Association, Volume 22,
Issue 2, 2021, Pages 320-328.e4,ISSN 1525-8610, https://doi.org/10.1016/j.jamda.2020.06.021.
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The COVID-19 Public Health Emergency (PHE) further highlighted and
exacerbated long-standing concerns about inadequate staffing in LTC
facilities. The COVID-19 PHE also yielded evidence that appropriate
staffing made a difference as a part of the overall response in LTC
facilities. One study looking at 4,254 LTC facilities across eight
States found that there were fewer COVID-19 cases in LTC facilities
with four or more stars for nurse staffing in the Five Star Quality
Rating System than in counterpart facilities with a rating of one to
three stars for staffing.\20\ These findings suggest that LTC
facilities with low nurse staffing levels may have been more
susceptible to the spread of the COVID-19 infection. Findings from a
2020 study involving all 215 nursing homes in Connecticut revealed that
a 20-minute increase in RN time spent providing direct care to
residents was associated with 22 percent fewer confirmed cases of
COVID-19 and 26 percent fewer COVID-19 related deaths.\21\ These
findings suggest that there is a positive relationship between the
hours of direct care that RNs provide and infection transmission in LTC
facilities.
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\20\ Figueroa JF, Wadhera RK, Papanicolas I, et al. Association
of Nursing Home Ratings on Health Inspections, Quality of Care, and
Nurse Staffing With COVID-19 Cases. JAMA. 2020;324(11):1103-1105.
doi:10.1001/jama.2020.14709.
\21\ https://agsjournals.onlinelibrary.wiley.com/doi/epdf/10.1111/jgs.16689.
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Workforce challenges have also contributed to understaffing, nurse
burnout, and position turnover.\22\ While workforce challenges have
existed for years and have many contributing factors, interested
parties have reported that the COVID-19 PHE exacerbated the problem as
many long-term care facilities experienced high worker turnover.
Although the COVID-19 PHE has officially ended, the long-term care
nursing workforce has been slower to recover than the nursing workforce
in other healthcare settings for a variety of reasons including the
difficulty of the work and comparatively lower pay, although it has
steadily increased over the past year and a half.23 24 There
is also evidence that facilities have additional funding that they
could be devoting to staffing. For example, one paper found that
nursing homes in Illinois were much more profitable than claimed but
that 63 percent of those profits were hidden and directed to related
parties of the owner. If those hidden profits were instead put toward
staffing, the study found, RN staffing could be substantially increased
and the share of facilities in compliance with the registered nurse
requirements of the proposed rule would rise by twenty percentage
points from 55.2 percent to 75.6 percent and compliance with the nurse
aide HRPD requirement would rise from 15.3 percent to 36.1 percent in
Illinois.\25\
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\22\ Kelly LA, Gee PM, Butler RJ. Impact of nurse burnout on
organizational and position turnover. Nurs Outlook. 2021 Jan-
Feb;69(1):96-102. doi: 10.1016/j.outlook.2020.06.008. Epub 2020 Oct
4. PMID: 33023759; PMCID: PMC7532952.
\23\ Refer, for example, to a report from the Kaiser Family
Foundation indicating that as of March 20, 2022, 28 percent of
nursing facilities reported a staffing shortage, as reported in
Ochieng, N., Chidambaram, P., Musumeci, M. Nursing Facility Staffing
Shortages During the COVID-19 Pandemic. Apr 04, 2022. Kaiser Family
Foundation. Accessed at https://www.kff.org/coronavirus-covid-19/issue-brief/nursing-facility-staffing-shortages-during-the-covid-19-pandemic.
\24\ https://data.bls.gov/timeseries/CES6562300001?amp%253bdata_tool=XGtable&output_view=data&include_graphs=true.
\25\ Ashvin Gandhi and Andrew Olenski, Tunneling and Hidden
Profits in Health Care, NBER Working Paper (March 2024), Tunneling
and Hidden Profits in Health Care (nber.org).
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The studies discussed in this section, corroborated by public
comment submissions, input provided through listening sessions, and the
2022 Nursing Home Staffing Study, demonstrate the consequences of
understaffing on resident health and safety. Yet, ongoing insufficient
staffing as well as the widespread variability in existing minimum
staffing standards across the United States (for example, 38 States and
the District of Columbia have minimum nursing staffing standards;
however, there are significant variations in their requirements)
highlight the need for national minimum staffing standards for direct
care in LTC facilities.
[[Page 40881]]
Chronic understaffing nonetheless continues in LTC facilities, and
evidence demonstrates the benefits of increased nurse staffing in these
facilities. For example, a report by the HHS Office of the Inspector
General (OIG) highlighted that in 2018, roughly 7 percent of nursing
homes failed to provide 8 hours per day of RN staffing on at least 30
total days during the year.\26\ The literature also suggests that
staffing levels within facilities across the United States vary
considerably, with less-staffed facilities more likely to be for-
profit, larger, rural, and have a higher share of Medicaid residents.
In particular, there has been evidence of new for-profit owners
reducing levels of registered nurse staffing in order to reduce
costs.\27\
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\26\ Office of Inspector General (OIG), Some Nursing Homes'
Reported Staffing Levels in 2018 Raise Concerns; Consumer
Transparency Could Be Increased, OEI-04-18-00450, August 2020.
https://oig.hhs.gov/oei/reports/oei-04-18-00450.asp.
\27\ https://www.nber.org/system/files/working_papers/w28474/w28474.pdf.
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Finally, multiple studies have shown that nursing home quality is
generally lower in LTC facilities that serve high proportions of
minority residents.28 29 30 Facilities that have a higher
proportion of minority residents tend to have limited clinical and
financial resources, low nurse staffing levels, and a high number of
care deficiency citations.31 32 Furthermore, disparities in
safety and quality of care exist between LTC facilities with a high
number of Medicaid residents and LTC facilities that have a high number
of Medicare residents, with facilities with a high number of Medicaid
residents tending to have worse outcomes.\33\ These disparities can
contribute to differences in quality across facilities' sites.\34\ As
such, we believe that national minimum staffing standards in LTC
facilities and the adoption of a 24/7 RN and enhanced facility
assessment requirements, will help to advance equitable, safe, and
quality care sufficient to meet the nursing needs for all residents and
greater consistency across facilities.
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\28\ https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3805666/.
\29\ https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4108174/.
\30\ https://onlinelibrary.wiley.com/doi/epdf/10.1111/1475-6773.12079.
\31\ https://www.jamda.com/article/S1525-8610(21)00243-7/
fulltext.
\32\ https://www.healthaffairs.org/doi/full/10.1377/hlthaff.2015.0094.
\33\ Mor, Vincent et al. ``Driven to tiers: socioeconomic and
racial disparities in the quality of nursing home care.'' The
Milbank quarterly vol. 82,2 (2004): 227-56. doi:10.1111/j.0887-
378X.2004.00309.x.
\34\ https://www.healthaffairs.org/doi/full/10.1377/hlthaff.2015.0094.
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3. CMS Actions and Key Considerations To Inform Mandatory Minimum
Staffing Standards
In February 2022, President Biden announced a comprehensive set of
reforms aimed at improving the safety and quality of care within the
Nation's nursing homes. One key initiative within the Biden-Harris
Administration's strategy was to establish a minimum nursing home
staffing requirement for LTC facilities participating in Medicare and
Medicaid.\35\ To help inform our efforts in establishing consistent and
broadly applicable national minimum staffing standards, we launched a
multi-faceted approach aimed at determining the minimum level and type
of staffing needed to enable safe and quality care in LTC facilities.
This effort included issuing the FY 2023 SNF PPS RFI,\36\ hosting
listening sessions with various interested parties, and conducting a
2022 Nursing Home Staffing Study, which builds on existing evidence and
several research studies using multiple data sources. In addition to
launching our multi-faceted approach, we considered how any potential
minimum staffing standards would affect other CMS programs and/or
initiatives as well as the enforceability of such standards.
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\35\ https://www.whitehouse.gov/briefing-room/statements-releases/2022/02/28/fact-sheet-protecting-seniors-and-people-with-disabilities-by-improving-safety-and-quality-of-care-in-the-nations-nursing-homes/.
\36\ Medicare Program; Prospective Payment System and
Consolidated Billing for Skilled Nursing Facilities; Updates to the
Quality Reporting Program and Value-Based Purchasing Program for
Federal Fiscal Year 2023; Request for Information on Revising the
Requirements for Long-Term Care Facilities To Establish Mandatory
Minimum Staffing Levels. https://www.federalregister.gov/documents/2022/04/15/2022-07906/medicare-program-prospective-payment-system-and-consolidated-billing-for-skilled-nursing-facilities.
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We published the FY 2023 SNF PPS RFI in April 2022, soliciting
public comments on minimum staffing standards. In response to the FY
2023 SNF PPS RFI, we received over 3,000 comments from a variety of
parties interested in addressing LTC facilities' issues including
advocacy groups, long-term care ombudsmen, providers and provider
industry associations, labor unions and organizations, nursing home
residents, staff and administrators, industry experts, researchers,
family members, and caregivers of residents in LTC facilities.
In the proposed rule we discussed the 2022 nursing home staffing
study \37\ that CMS commissioned (see 88 FR 61359-61364). In brief, the
key takeaways were:
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\37\ Abt Associates. (2022). Nursing Home Staffing Study
Comprehensive report. Report prepared for the Centers for Medicare &
Medicaid Services. https://edit.cms.gov/files/document/nursing-home-staffing-study-final-report-appendix-june-2023.pdf.
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There is no clear, consistent, and universal methodology
for setting specific minimum staffing standards, as evidenced by the
varying current standards across the 38 States and the District of
Columbia that have adopted their own staffing standards.
The relationship between staffing and quality of care and
safety, varies by staff type and level as follows:
++ Total Nurse Staffing hours per resident day of 3.30 or more have
a strong association with safety and quality care.
++ RN hours per resident day of 0.45 or more have a strong
association with safety and quality care.
++ NA hours per resident day of 2.45 or more also have a strong
association with safety and quality care.
++ LPN/LVN hours per resident day, at any level, do not appear to
have any consistent association with safety and quality of care.
However, we recognize that LPN/LVN professionals undoubtedly
provide important services to LTC facility residents despite the
findings that LPN/LVN staffing levels do not appear to have a
consistent association with safety and quality of care, unlike RN and
NA staffing levels.
Increasing nursing staffing levels are associated with
benefits including enhanced safety and quality, as well as costs,
namely financial costs to LTC facilities.
In addition to commissioning the 2022 Nursing Home Staffing Study
and issuing the FY 2023 SNF PPS RFI, CMS also held two listening
sessions on June 27, 2022, and August 29, 2022, to provide information
on the study and solicit additional input on the study design and
approach for establishing minimum staffing standards. We described the
general content of these listening sessions in the 2023 proposed rule
(see 88 FR 61352).
4. Ongoing CMS Initiatives and Programs Impacting LTC Facilities
In establishing the proposed and final minimum staffing standards,
we also considered ongoing CMS policies, programs, and operations,
including the SNF Prospective Payment System (SNF PPS), the SNF Value-
based Purchasing Program (SNF VBP), oversight and enforcement, and CMS
policies intended to enhance access to Medicaid home and community-
based services and promote community-based placements.
[[Page 40882]]
a. Medicare Skilled Nursing Facility Prospective Payment System
The Medicare SNF PPS is a comprehensive per diem rate under
Medicare for all costs for providing covered Part A SNF services (that
is, routine, ancillary, and capital-related costs) that is statutorily
required to be updated annually. The FY 2025 SNF PPS proposed rule
published on April 3, 2024, and proposed to update the Medicare payment
policies and rates for SNFs for FY 2025. For the proposed FY 2025
update, CMS estimated that the aggregate impact of the payment policies
in the proposed rule would result in a net increase of 4.1 percent, or
approximately $1.3 billion, in Medicare Part A payments to SNFs in FY
2025, if finalized. We note that section 1888(e)(4)(E) of the Act
requires the SNF PPS payment rates to be updated annually. These
updates take into account a number of factors, including but not
limited to, wages, salaries, and other labor-related prices. Specifics
regarding the process to update SNF PPS payment rates are discussed in
the rule.\38\
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\38\ Medicare Program; Prospective Payment System and
Consolidated Billing for Skilled Nursing Facilities; Updates to the
Quality Reporting Program and Value-Based Purchasing Program for
Federal Fiscal Year 2025. https://www.cms.gov/newsroom/fact-sheets/fy-25-skilled-nursing-facility-prospective-payment-system-proposed-rule-cms-1802-p.
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b. Skilled Nursing Facility (SNF) Value-Based Payment (VBP) Program
Staffing Measure
In the FY 2023 SNF PPS final rule, we adopted a new Total Nurse
Staffing quality measure under the SNF VBP Program, which is used to
provide an incentive to LTC facilities to improve quality of care
provided to residents.\39\ Performance on the Total Nurse Staffing
measure in FY 2024 will be used to make payment adjustments in FY 2026.
This is a structural measure that uses auditable electronic data
reported to CMS' PBJ system to calculate HPRD for total nurse staffing.
Our minimum staffing standards are not duplicative of this existing
measure; rather, they are complementary by establishing a consistent
and broadly applicable national floor (baseline) at which residents are
at a significantly lower risk of receiving unsafe and low-quality care.
At the same time, the Total Nurse Staffing quality measure will drive
continued improvement in staffing across LTC facilities.
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\39\ https://www.cms.gov/newsroom/fact-sheets/fiscal-year-fy-2023-skilled-nursing-facility-prospective-payment-system-final-rule-cms-1765-f.
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c. Nursing Home Survey and Enforcement
The LTC minimum staffing standards in this regulation are part of
the Federal participation requirements for LTC facilities which are the
basis for survey activities and for the minimum health and safety
requirements that must be met and maintained to receive payment and
remain as a Medicare or Medicaid provider. As such compliance with
these requirements will be assessed through CMS' existing survey,
certification, and enforcement processes under 42 CFR part 488.\40\
Section 1864(a) of the Act authorizes the Secretary to enter into
agreements with the State survey agencies to determine whether SNFs
meet the Federal participation requirements for Medicare. Section
1902(a)(33)(b) of the Act provides for the State survey agencies to
perform the same survey tasks for NFs in Medicaid. The results of these
surveys are used by CMS and the State Medicaid Agency, respectively, as
a basis for a decision to enter into, deny, or terminate a provider
agreement with the facility. They are also used to determine whether
one or more enforcement remedies should be imposed against LTC
facilities that are not in substantial compliance with these Federal
participation requirements. Sections 1819(h) and 1919(h) of the Act, as
well as 42 CFR 488.404, 488.406, and 488.408, provide that CMS or the
State may impose one or more remedies in addition to, or instead of,
termination of the provider agreement when the CMS or the State finds
that a facility is out of substantial compliance with the Federal
participation requirements. Specifically, enforcement remedies that may
be imposed include the following:
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\40\ https://www.cms.gov/medicare/provider-enrollment-and-certification/surveycertificationenforcement/nursing-home-enforcement.
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Termination of the provider agreement;
Temporary management;
Denial of payment for all Medicare and/or Medicaid
individuals by CMS to a facility, for Medicare, or to a State, for
Medicaid;
Denial of payment for all new Medicare and/or Medicaid
admissions;
Civil money penalties;
State monitoring;
Transfer of residents;
Transfer of residents with closure of facility;
Directed plan of correction;
Directed in-service training; and
Alternative or additional State remedies approved by CMS.
In general, to select the appropriate enforcement remedy(ies), the
seriousness, that is, scope and severity levels, of the deficiencies is
assessed. The severity level reflects the impact of the deficiency on
resident health and safety and the scope level reflects how many
residents were affected by the deficiency. The survey agency determines
the scope and severity levels for each deficiency cited at a survey.
As part of these survey and enforcement activities, we currently
publish data for all Medicare and Medicaid LTC facilities on the CMS
public-facing Care Compare website, including the number of certified
beds and a facility's overall Five Star quality rating, including three
individual star ratings in the categories of inspections, staffing, and
quality measurement.\41\ In addition, individual performance quality
measures are included on Care Compare. With respect to nursing home
staffing, this includes the following staffing data: total number of
nurse staff HPRD, RN HPRD, LPN/LVN HPRD, and NA HPRD, as well as some
additional staffing measures, including weekend hours. These published
data are collected through a variety of mechanisms, including during
CMS surveys (health inspection data), reporting through the PBJ System,
and resident assessment data reported by LTC facilities to us.
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\41\ Centers for Medicare & Medicaid Services Medicare.gov. Find
and Compare Nursing Homes Providers near you https://www.medicare.gov/care-compare/?providerType=NursingHome&redirect=true.
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Over the last several years, CMS has taken a number of actions to
strengthen our oversight and enforcement of compliance. For example, in
2022, CMS began integrating PBJ data into the survey process to help
target surveyors' investigations of a facility's compliance; in 2023,
CMS announced it would undertake new analyses of State inspection
findings to ensure cited deficiencies receive the appropriate
consequence, particularly involving resident harm.\42\ Additionally, we
began posting levels of weekend staffing and rates of staff turnover,
and using these metrics in the Five Star Quality Rating System to help
provide more useful information to consumers. Furthermore, CMS revised
the policies in the Special Focus Facility (SFF) program to ensure
these facilities make sustainable improvements to protect residents'
health and safety.\43\ In January 2023, CMS began conducting audits of
[[Page 40883]]
facilities' medical records to identify if residents were
inappropriately given a diagnosis of schizophrenia, and administered
antipsychotics drugs, which are very dangerous for residents. Lastly,
in November 2023, CMS released a final rule that implemented portions
of section 6101 of the Affordable Care Act, requiring the disclosure of
certain ownership, managerial, and other information regarding LTC
facilities.\44\
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\42\ https://www.whitehouse.gov/briefing-room/statements-releases/2023/09/01/fact-sheet-biden-harris-administration-takes-steps-to-crack-down-on-nursing-homes-that-endanger-resident-safety/.
\43\ https://www.cms.gov/newsroom/press-releases/biden-harris-administration-strengthens-oversight-nations-poorest-performing-nursing-homes.
\44\ https://www.cms.gov/newsroom/fact-sheets/disclosures-ownership-and-additional-disclosable-parties-information-skilled-nursing-facilities-and-0.
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As noted previously in this section, we have been moving towards
more data-driven enforcement, including use of the PBJ System data to
guide monitoring, surveys and enforcement of existing staffing
requirements. Additionally, starting in late 2023, CMS expanded audits
of these data. We continue to recognize, however, the value of
assessing the sufficiency of a facility's staffing based on
observations of resident care conducted during the onsite survey. For
example, while compliance with numeric minimum staffing standards could
be assessed using PBJ System data, it is possible that due to a
facility's layout, management, and staff assignments, a facility could
meet the numeric staffing standards but not provide the sufficient
level of staffing needed to protect residents' health and safety.
Resident health status and acuity (for example, proportion of residents
with cognitive decline or use of ventilators) are also factors in
determining adequate staffing. Therefore, when assessing the
sufficiency of a facility's staffing it is important to note that any
numeric minimum staffing requirement is not a target and facilities
must assess the needs of their resident population and make
comprehensive staffing decisions based on those needs. Often, that will
require higher staffing than the minimum requirements. The additional
requirements in this rule to bolster facility assessments are intended
to address this need and guard against any attempts by LTC facilities
to treat the minimum staffing standards included here as a ceiling,
rather than a floor (baseline).
In summary, the benefits and success of minimum staffing standards
are heavily dependent on our utilization of the survey and enforcement
process. Therefore, in establishing numerical minimum staffing
standards our goal is to ensure that they are both implementable and
enforceable, as determined through both the PBJ System as well as on-
site surveys.
d. Medicaid Home and Community-Based Services
We remain committed to a holistic approach to meeting the long-term
care needs of Americans and their families. This requires a focus on
access to high-quality care in the community while also ensuring the
health and safety of those who receive care in LTC facilities. In the
Ensuring Access to Medicaid Services final rule published elsewhere in
this Federal Register and Medicaid and CHIP Managed Care Access,
Finance, and Quality final rule published elsewhere in this Federal
Register, we finalized several policies that will work alongside those
included in this rule. These finalized proposals require that at least
80 percent of Medicaid payments for personal care, homemaker and home
health aide services be spent on compensation for the direct care
workforce (as opposed to administrative overhead or profit); establish
standardized reporting requirements related to health and safety,
beneficiary service plans and assessments, access, and quality of care;
and promote transparency through public reporting on quality,
performance, compliance as well as certain Medicaid HCBS providers'
payment rates for direct care workers. Additionally, we remain
committed to facilitating transfers from LTC facilities to the
community through the continued implementation of the ``Money Follows
the Person'' program.\45\
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\45\ Money Follows the Person [verbar] Medicaid, https://www.medicaid.gov/medicaid/long-term-services-supports/money-follows-person/.
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Notably, similar to the findings in the 2022 Nursing Home Staffing
Study, we believe that the minimum staffing standards finalized in this
rule will improve quality of care which includes facilitating the
transition of care to community-based care services and potential
Medicare savings.
B. Provisions of the Proposed Regulations and Analysis and Response to
Public Comments
In response to the proposed rule, we received 46,520 total
comments. Commenters included long term care consumers, advocacy groups
for long-term care consumers, organizations representing providers of
long-term care and senior service, long-term care ombudsmen, State
survey agencies, various health care associations, legal organizations,
labor unions, residents, families, and many individual health care
professionals (such as nursing organizations) and administrative staff.
Our goal is to protect resident health and safety and ensure that
facilities are considering the unique characteristics of their resident
population in developing staffing plans, while balancing operational
requirements and supporting access to care. Moreover, the comprehensive
staffing standards will provide staff with the support they need to
safely care for residents. Most commenters supported the proposed
rule's goals to ensure safe and quality care in LTC facilities.
In this final rule, we provide a summary of each proposed
provision, a summary of the public comments received and our responses
to them, and an explanation for changes in the policies that we are
finalizing.
1. General Comments
Comment: Many commenters shared their personal stories of care
provided and received in nursing homes. While a majority of these
commenters shared observations of the compassion shown by well-meaning
staff, they also shared observations of missed care and avoidable harm
that occurred due to insufficient staffing. A resident stated:
``I was in a nursing home for rehab on discharge from
hospital the day after I broke my shoulder in a fall down a staircase.
When a fire alarm sounded I was on the toilet. I heard the automatic
fire doors close. I stayed as calm as I could, reminding myself someone
would come to get me off the toilet and out to safety. Half an hour
later activity resumed nearby and a CNA did help me off the toilet. She
said `Oh I wasn't worried about you, I knew you'd get yourself out
through the window if you needed to.' ''
Many family members and friends shared personal stories, urging CMS
to adopt minimum staffing standards to prevent future incidences like
the ones that their loved ones experienced. Families and friends wrote:
``She was a successful Real-estate broker her whole adult
life, who suffered a tragic fall that left her with multiple breaks in
her leg and landed her in a nursing home for rehab. What she lost in
the nursing home was far greater than the break, she lost her dignity
and self-worth as she was forced to lay in her own urine on a regular
basis and on several occasion her own feces. The staff were caring and
capable but there was never enough of them.''
``The major concern was the stage 4 bed sores that Jerry
developed after 6 weeks at BNR while Jerry was under their care. Jerry
was continually left sitting in his own feces as he was both urinary
and bowel incontinent. He was unable to get help or attention on
numerous occasions by pressing the call button, to the point of
purchasing a bull
[[Page 40884]]
horn with a siren to summon help, of course this didn't improve
matters. Several times his roommate would be unconscious and hanging
out of his bed a hairs breadth away from falling with no belts or
restraints, which I personally witnessed and alerted an aide who
replied `he likes it that way' ''.
``I had a loved one recently fall in a Memory Care
Facility. She was on the floor for quite some time before she was
discovered. She had a broken hip and no ability to become ambulatory.
All she had done was attempt to go to the bathroom in the middle of the
night. My recommendation is that a patient should not be left to get
themself to the bathroom alone in the night. Why can't they have enough
staff on hand that they can provide someone to help each patient to the
bathroom and safely return to bed?''
``This past year my partner spent several months in a
nursing home/rehab facility and I personally saw how shorthanded they
were. The lack of adequate staff, number of part-time and substitute
staffing, poor pay, was obvious. The nights were the worse time. A
patient could ring for help and wait and wait an hour for a response.
They could ask for a glass of water and wait hours for it to come. They
could lay in their own waste or urine-soaked bedding for way too long,
day or night. Those who needed help being fed would often just have the
food delivered and if a family member wasn't there to help them eat
they would go hungry.''
``They were supposed to check in on him every hour and to
help him turn from side to side at least every two hours. Later, when
he got better, they were supposed to check on him every four hours, but
they didn't. They were supposed to change his clothing and bedsheets
regularly. They did none of that often enough, so he developed
bedsores/open wounds as big as your hand on his backside because of a
lack of care. How would you like your dad to go through that experience
in the last 24 months of his life, after all he'd been through in 90
years?''
``In June 2021 while the day shift nurse was making
morning rounds she found my family member aspirating on vomit, having
seizures, with a 106 degree temperature which turned in to a case of
sepsis. The nurse said she had no idea how long my family member was
lying there in that condition as there was only 1 nurse and 1 aide for
over 100 residents on the overnight shift. Since that incident my
family member has lost the ability to speak and/or respond to questions
and or commands. As a result I have personally spent 10 to 12 hours a
day, every day, with my family member at the LTC to ensure they are
getting the care they need.''
``My loved one was basically starved to death--all
dementia patients in that specific ward were, due to not enough staff
helping them eat. Two people were on staff to help 20 patients, so only
the three catatonic people got help. Other patients would be
distracted, which is natural, at meals, but then weren't encouraged to
eat, due to lack of sufficient staff. The patients would therefore lose
weight weekly and be dizzy, malnourished weak, leading to frequent
falls and more and more bedridden patients. These patients would then
get pneumonia and die. There were never enough staff to clean up spills
and urine fast enough- I visited frequently and witnessed fall after
fall constantly around me due to this problem. There were never enough
staff to do ANYthing.''
Likewise, many nursing home staff wrote of their own experiences
and observations while trying to safely deliver care to residents.
Staff wrote:
``Personal observations from my nursing home consulting
work as a Registered Dietitian: Nurses so short staffed they declare a
`med holiday' and throw away all the meds for one shift because they
don't have time to pass them out. Nursing so understaffed that bedtime
snacks, though made and delivered to the nursing station, are not
passed out. Resulting in one insulin dependent diabetic resident's
blood sugar zeroing out in the wee hours of the night. Patient died.''
``Recently a resident got skin ulcers after no one was
able to see him for the entire 8-hour shift, and who knows how long
before that? When you have 14 or 18 or 20 residents to care for,
there's simply not enough time for everyone. Feeding them all takes so
much time, several hours combined right there. Thats how other basic
needs fall by the wayside. When you're doing the job of two CNAs, it
really means that half of your residents are going to have to go
without.''
``Last week, after two aides did not show up for their
shift, it led to several residents missing their breakfast. Thats just
one example unfortunately, residents regularly miss meals or have to
eat them late. The problem is that whenever staff is needed for one
urgent task, were usually in the middle of another urgent task that
cannot be interrupted.''
``Residents in our facility are recovering from surgery or
things like strokes and they need a lot of help. With how many
residents I am caring for, I don't have time to give them the best
care. I feel like I'm always rushing to the next person, and they get
upset, and this is not good for their recovery. If they have to go to
the bathroom and can't wait, they try to go by themselves and they end
up falling.''
Response: We thank commenters for sharing their personal stories.
The compelling narratives shared by commenters demonstrate the dangers
of inadequate staffing in nursing homes, not as an impersonal set of
numbers and percentages, but as the lived experiences of the more than
1 million people receiving nursing home services each year. As
evidenced by the thousands of personal stories told in the comments,
there is a persistent, pervasive problem in the safety of nursing home
care across the country that must be addressed. This final rule
includes policies that will advance resident safety, and we are
committed to using all available CMS authorities to continue protecting
residents now and in the future.
Comment: Comments on the proposed rule varied in level of support
and opposition. Many commenters expressed overall support for the
proposed revisions to the regulations and concern about the health and
safety of nursing home residents. Numerous commenters encouraged CMS to
further strengthen the requirements and not finalize the version of the
rule as proposed. A large number of commenters applauded CMS for taking
a first step toward improvements for staff and residents in LTC
facilities and noted additional opportunities to address workforce
challenges. Many NAs and family representatives described the negative
impact of low staffing levels on meeting residents' needs, writing of
situations that ranged from residents that needed assistance with meals
not getting that assistance and losing weight, to accounts of residents
that had to stay in bed all weekend because the facility was short
staffed. Many comments centered on unnecessary falls that occur because
no one is around to assist residents to and from the bathroom. For
example, one commenter who described themselves as a family member of
many residents shared a personal description of their experience with a
nursing facility, noting that their loved ones often share that ``they
have been waiting for hours just to go to the bathroom.'' Commenters
noted that most LTC direct staff are doing the best they can and that
increasing staff will decrease burnout, make their jobs safer, and
lessen the potential for resident's safety events such as falls and
pressure ulcers. For example, one NA with over 22 years of
[[Page 40885]]
experience highlighted that while they love their jobs, it has been one
the hardest they ever held and having ``Federal guidelines in place
could help the elderly and their families feel more confident in the
facilities.'' This commenter also indicated that having Federal
guidelines in place will provide individuals ``more of an incentive to
work in a long-term care facility.''
In contrast, other commenters expressed a desire to rescind the
proposed rule, citing overall concerns about the financial burden and
workforce shortages, training challenges, administrative burden, and
limited housing options in sparsely populated areas for new staff.
Response: The large volume of comments that we received
demonstrates the interest in resident health and safety issues.
Numerous comments from residents, families, staff, and ombudsmen make
it clear that there is a widespread lack of sufficient care by nursing
staff in our nation's LTC facilities. These comments provide further
evidence of and support for our view that we will significantly improve
resident safety through the establishment of minimum staffing
requirements. The changes that we discuss in this final rule are
intended to promote resident health, safety, and access to care.
We acknowledge the workforce challenges in LTC facilities.
According to the Bureau of Labor Statistics (BLS), in March 2020, there
were 3,372,000 staff working in nursing homes and other LTC facilities
and an average of 1,319,318 residents per day in nursing homes. Total
staffing dropped to a low of 2,961,200 for staff working in nursing
homes and other LTC facilities in January 2022, a decrease of
approximately 410,000 staff from March 2020. The daily census of
residents averaged 1,152,842 per day in nursing homes in January 2022.
Workforce challenges may have contributed to the drop in staff, but it
appears to have been caused by multiple factors, such as the drop in
the number of nursing home residents. The number of staff is improving,
as of November 2023 there are 3,216,700 staff working in nursing homes
and other LTC facilities, still 155,300 less than March 2020.
Facilities averaged 1,201,585 residents per day in November 2023.
Please note, this data is for all employees in these facilities, not
just healthcare staff.\46\ As stated in the proposed rule, it is the
policy of the Biden-Harris Administration to ensure that the LTC
workforce is supported, valued, and well-paid.\47\
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\46\ Bureau of Labor Statistics. https://data.bls.gov/timeseries/CES6562300001?amp%253bdata_tool=XGtable&output_view=data&include_graphs=true. Accessed 02/28/24.
\47\ Executive Order on Increasing Access to High Quality Care
and Supporting Caregivers. White House. Accessed at https://www.whitehouse.gov/briefing-room/presidential-actions/2023/04/18/executive-order-on-increasing-access-to-high-quality-care-and-supporting-caregivers/. Published on April 18, 2023. Accessed on
March 19, 2023.
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We note the efforts that many commenters described regarding their
recruitment, hiring and training of employees along with retention
efforts for existing employees. We support the concept of implementing
workforce development programs, as they benefit not only the employees
but ultimately the residents. CMS is launching a comprehensive
workforce development initiative \48\ and is also exploring the
potential to provide technical assistance to LTC facilities through the
existing Quality Improvement Organizations. While the requirements of
this rule are intended to improve resident safety and care, they may
also improve the working environment in LTC facilities. Establishing
staffing minimums will assure that NAs, for example, have enough
nursing staff present in the facility for a safe 2-person resident
transfer using a mechanical lift, reducing resident and staff injuries,
as well as staff burnout. The new requirement that facilities must
involve their direct care workers and their representatives in the
facility assessment allows the staff to provide meaningful input
regarding the facility's operations, which has the potential to lead to
a better working environment that complements retention and hiring
efforts. In addition, having a 24/7 RN presence can improve resident
safety \49\ with the added benefit of providing more professional
support to all facility workers.
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\48\ FACT SHEET: Biden-Harris Administration Takes Steps to
Crack Down on Nursing Homes that Endanger Resident Safety [verbar]
The White House: https://www.whitehouse.gov/briefing-room/statements-releases/2023/09/01/fact-sheet-biden-harris-administration-takes-steps-to-crack-down-on-nursing-homes-that-endanger-resident-safety/.
\49\ National Academies of Sciences, Engineering, and Medicine.
2022. The National Imperative to Improve Nursing Home Quality:
Honoring Our Commitment to Residents, Families, and Staff.
Washington, DC: The National Academies Press. https://doi.org/10.17226/26526.
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Comment: Some commenters stated that the pool of former nursing
home workers who left the sector is more than sufficient to cover the
demand for new workers, while numerous commenters voiced questions
about the availability of workforce and whether this is the right time
to implement staffing minimums. A few commenters denied the existence
of a staffing shortage. One commenter stated it was a pay shortage and
that challenges with a lack of qualified staff would be readily
resolved by higher pay and better working conditions. Some commenters
explained that the LTC workforce has not recovered from the impact of
the COVID PHE. Some commenters noted that LTC facilities were already
having issues hiring sufficient staff due to the lack of qualified,
available staff in their area. For example, one commenter pointed out
that in the State of Missouri, less than 4 percent of RNs were looking
for work and that more than a quarter of RNs were 54 or older,
suggesting that not only were there few RNs looking for work but also a
significant number would likely be retiring in the next several
years.\50\ The commenter noted that compliance with these minimum
staffing requirements would require hundreds of new RNs. Some
commenters asked where these additional RNs would come from to staff
LTC facilities. Some commenters shared concern about shortages of RNs
overall and specifically the scarcity of RNs who chose to work in LTC
facilities. They stated this needs to be recognized as an impediment to
some facilities being able to meet staffing minimums. A commenter
expressed concerns that due to the minimum staffing requirements,
providers will likely encounter heightened levels of competition in
each labor market for RNs and NAs. Moreover, the commenter stated that
it would be even more challenging to recruit and retain staff for
``smaller LTC facilities and those located in rural areas than larger,
better-funded facilities in nearby urban areas''. Some recommended that
this minimum staffing standards regulation be suspended until there
were enough RNs to staff LTC facilities to comply with the 24/7 RN and
0.55 RN HPRD requirements. Other commenters stated that their
facilities have been trying to hire nursing staff without success and
that they rely on staffing agencies, a process which offers its own set
of unique challenges for facilities.
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\50\ Missouri State Board of Nursing. (2022). 2022 Missouri
Nursing Workforce Report. Jefferson City, MO: Missouri State Board
of Nursing. https://pr.mo.gov/boards/nursing/2022%20Missouri%20Nursing%20Workforce%20Report.pdf.
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Response: We acknowledge that there are workforce challenges in
various areas of the country. CMS is committing over $75 million to
launch an initiative to help increase the long-term care workforce.\51\
We expect that these funds
[[Page 40886]]
will be allocated for such purposes as for tuition reimbursement, we
are also exploring the potential to provide additional technical
assistance to LTC facilities through the Quality Improvement
Organizations. The Department of Labor and other parts of the Biden-
Harris Administration are also investing in building a strong nursing
workforce and expanding the pipeline of new staff. In response to
comments, and in addition to the $75 million workforce development
investment and potential technical assistance, we have made some
changes to the proposed minimum staffing standards requirements to
provide additional flexibility and time for facilities to implement
these changes while maintaining safety and quality. The final
requirements have staggered implementation dates over a period of up to
five years. A total nurse staffing standard has been added and there
are exemptions from the minimum staffing standards. We will continue to
examine resident safety issues and potential changes going forward. The
minimum staffing standards will provide staff in LTC facilities the
support they need to safely care for residents, and help prevent staff
burnout, thereby reducing staff turnover, which can lead to improved
safety.
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\51\ FACT SHEET: Biden-Harris Administration Takes Steps to
Crack Down on Nursing Homes that Endanger Resident Safety [verbar]
The White House: https://www.whitehouse.gov/briefing-room/statements-releases/2023/09/01/fact-sheet-biden-harris-administration-takes-steps-to-crack-down-on-nursing-homes-that-endanger-resident-safety/.
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Comment: Numerous commenters voiced support for the proposed
regulations but asked for funding, indicating that the financial
implication of hiring staff to meet the standards was a roadblock.
Commenters stated that the implementation of the minimum nursing
staffing requirement will bring increased costs, and in the absence of
reimbursement for these costs, the LTC facilities will have to absorb
those increased costs, causing financial strain. One commenter
recommended increasing payment rates using wage pass through rules.
Some commenters stated that nursing homes cannot compete with hospitals
for RN salaries. Other commenters expressed concern that unintended
consequences of hiring more staff would result in higher fees for
residents and their families. In contrast, other commenters suggested
that nursing homes have the financial means to provide quality
staffing, without additional funding. Some of these commenters
highlighted the profits earned by nursing homes, which make them a
desirable investment opportunity, as well as diversion of funds to
related-party expenses or excess administrative costs.\52\
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\52\ Comments of the Long Term Care Community Coalition at 10-
11.
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Response: While funding, salaries paid by other healthcare
providers, and fees that residents are charged are outside the scope of
this rulemaking, we crafted the rule with careful consideration that
the majority of LTC facilities will need to recruit, hire, and train
new staff. In the proposed rule we noted that non-profit nursing homes
were three times more likely to already be in compliance with the
proposed minimum staffing requirements suggesting a relationship
between profit model and staffing.\53\ Through phased-in implementation
facilities may not have to hire all the necessary nursing staff at one
time. There are also waivers and hardship exemptions available to LTC
facilities on a case-by-case basis. Please see sections II B.4,
``Registered Nurse 24 hours per day 7 days per week,'' and II B.5,
``Hardship Exemption from Minimum Hours per Resident Day and RN onsite
24 hours per day 7 days per week,'' of this rule for more details. In
addition, please see section VI, ``Regulatory Impact Analysis,'' for
estimates of expenditures related to this final rule.
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\53\ Abt Associates. (2022). Nursing Home Staffing Study
Comprehensive report. Report prepared for the Centers for Medicare &
Medicaid Services. https://edit.cms.gov/files/document/nursing-home-staffing-study-final-report-appendix-june-2023.pdf.
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Comment: A commenter noted that LTC facilities must meet State and
Federal requirements for health and safety. Some commenters were
concerned about the burden of meeting both their State requirements and
Federal requirements. A commenter expressed concern about conflicts
between State and Federal staffing requirements. The commenter
suggested rewards for facilities located in States that have higher
staffing standards and reimbursement cuts for facilities located in
States that have reduced or eliminated staffing standards compared to
Federal minimum staffing standards.
Response: Complying with State and Federal requirements is not new
to LTC facilities. Generally, healthcare facilities in the United
States function under State and Federal regulations. With regard to the
updates to the requirements for Medicare and Medicaid participation for
LTC facilities, the provisions in this final rule are not intended to
and would not preempt the applicability of any State or local law
providing a higher standard. In States where there is a higher HPRD
requirement for RNs or NAs, or an RN coverage requirement in excess of
at least one RN on site 24-hours per day, 7 days a week, or a total
nurse staffing minimum above 3.48 HPRD that is required by this final
rule, or any other specific requirement such as for LPNs/LVNs, the
facility would be expected by its State or local government to meet the
higher standard. To the extent Federal standards exceed State and local
law minimum staffing standards, no Federal pre-emption is implicated
because facilities complying with Federal law would also be in
compliance with State or local law. Facilities in states that have
eliminated their staffing standards are required to comply with Federal
law. We are not aware of any State or local law providing for a maximum
staffing level. This final rule, however, is intended to and would
preempt the applicability of any State or local law providing for a
maximum staffing level, to the extent that such a State or local
maximum staffing level would prohibit a Medicare, Medicaid, or dually
certified LTC facility from meeting the minimum HPRD requirements and
RN coverage levels finalized in this rule or from meeting higher
staffing levels required based on the facility assessment provisions
finalized in this rule. Financial adjustments related to State staffing
requirements are outside the scope of this rule.
Comment: Numerous commenters described various issues involving
nursing education and the volume of new nurse graduates. Some
commenters suggested investing in nursing school infrastructure.
Another commenter recommended a policy that includes educational
opportunities for individuals to enter nursing and other health care
fields, increasing the number of nursing educators, and subsidies for
NA training programs. One commenter asked that CMS offer student loan
forgiveness, or no-interest student loans for those entering the
nursing profession. Some commenters stated that the proposed $75
million workforce campaign that will be coordinated by CMS and was
announced in tandem with the proposed rule, is not sufficient to train
the additional nursing staff that are needed. Other commenters asked
that CMS work to ensure funding for training and recruiting qualified
staff that includes home health and hospice providers. Another
commenter asked CMS to work on recruitment and retention of LTC
facility nursing staff. Other commenters expressed concern that the $75
million workforce campaign funds should not be used to train surveyors
who will eventually
[[Page 40887]]
assess enforcement actions against nursing homes.
Response: We agree that educating and training new nursing staff is
important for the nursing home workforce. On September 1, 2023, the
White House published a fact sheet detailing various initiatives that
promote safety in LTC facilities.\54\ One of the initiatives is focused
on growing the nursing workforce. CMS is launching a new nursing home
staffing campaign to help workers pursue careers in nursing homes. This
campaign will support the recruitment, training, and retention of
nursing home workers, including the CMS investment of over $75 million
in financial incentives for nurses to work in nursing homes, through
the Civil Money Penalty (CMP) Reinvestment Program. Other parts of the
Federal Government are also investing in the nursing workforce. The
Substance Abuse and Mental Health Services Administration (SAMHSA)
provides training and technical assistance to nursing facility staff
serving individuals with serious mental illness and/or substance use
disorders through its Center of Excellence for Building Capacity in
Nursing Facilities to Care for Residents with Behavioral Health
Conditions. The Department of Labor also provided $80 million in grants
last year as part of its Nursing Expansion Grant program to increase
clinical and vocational nursing instructors and educators in the U.S.,
and train healthcare professionals, including direct care workers. The
Health Resources and Services Administration (HRSA) has also
administered other programs to increase the number of nurse preceptors,
an example of a HRSA program that supports the training of clinical
nurse preceptors is the Nurse Education, Practice, Quality and
Retention-Clinical Faculty and Preceptor Academies (NEPQR-CFPA)
Program.\55\ Another nurse education program administered by HRSA is
the FY 2023 Nurse Education, Practice, Quality and Retention (NEPQR)-
Pathway to Registered Nurse Program (PRNP) Awards, this program creates
a pathway for LPNs and LVNs to become RNs.\56\
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\54\ FACT SHEET: Biden-Harris Administration Takes Steps to
Crack Down on Nursing Homes that Endanger Resident Safety [verbar]
The White House:_https://www.whitehouse.gov/briefing-room/statements-releases/2023/09/01/fact-sheet-biden-harris-administration-takes-steps-to-crack-down-on-nursing-homes-that-endanger-resident-safety/.
\55\ Nurse Education, Practice, Quality and Retention-Clinical
Faculty and Preceptor Academies (NEPQR-CFPA) Program [verbar] HRSA.
\56\ FY 2023 Nurse Education, Practice, Quality and Retention
(NEPQR)-Pathway to Registered Nurse Program (PRNP) Awards [verbar]
Bureau of Health Workforce (hrsa.gov).
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While the comments received on the specific details of the CMS
nursing home staffing campaign are outside the scope of this rule, we
acknowledge that workforce development is a shared responsibility, and
encourage LTC facilities to partner with education and training sources
to meet their staffing needs. We are also exploring the potential to
provide additional technical assistance to LTC facilities through the
Quality Improvement Organizations. We appreciate the information
regarding nursing education, the number of new graduates and the
suggestion to invest in nursing school infrastructure; however, these
issues are not within the scope of CMS authority and this final rule.
Likewise, the request for training and recruiting home health and
hospice providers is also outside the scope of this rule. The request
for student loan considerations is also outside the scope of this rule.
Comment: Several commenters suggested that CMS should work to
promote an immigration policy that supports nursing staff to enter the
United States and the nursing home workforce. Another commenter
suggested building a domestic and international pipeline for potential
nursing home workers to be recruited and trained.
Response: We appreciate these comments regarding the relationship
between staffing and immigration policy. However, immigration policy is
not within the scope of CMS authority.
Comment: One commenter stated that CMS should revisit the
standards, at minimum, within one to two years of full implementation
to determine if the agency's approach is yielding its intended outcomes
and assess their impact on quality, safety, and access, followed by
periodic reevaluations and redeterminations.
Response: We agree that it is important to review the impact that
this final rule has on the delivery of care and services in LTC
facilities. We also intend to monitor emerging research in this area to
further inform our policy decisions. CMS continually reviews existing
regulations to assess their appropriateness, effectiveness, and
continued necessity. We intend to monitor LTC facility services, as
well as the safety and quality of resident care, through the survey
process, quality measure performance, and PBJ data to assess the impact
of these new requirements and determine what, if any, future actions
should be taken to assure that all residents receive safe care at all
times and that their needs are met. We realize that standards of care
are constantly evolving and staffing standards may need to be raised to
meet the health and safety needs of facilities over time. The
requirements in this rule are minimum baseline standards for safety and
quality without accounting for resident acuity. We will continue to
engage stakeholders as the requirements are implemented.
Comment: Many commenters expressed concern about potential
systemwide impacts of the proposed changes, ranging from the potential
for reductions in LTC facility admissions and census, facility
closures, and the impact of those closures on residents and their
families. Commenters gave scenarios of residents or individuals that
may need admission to a LTC facility and not be able to find the care
they need if fewer beds were available. Commenters suggested that
residents in LTC facilities might face forced discharge or transfer if
sufficient RNs and other staff were not available at the facility,
resulting in inappropriate discharges to home or other inappropriate
settings for residents. Some commenters expressed concern about
readmission protections for residents when facilities say they can't
readmit due to low staffing.
In addition, commenters stated that various issues may occur in
other provider settings as the current state of nurse staffing at LTC
facilities evolves. Some commenters noted that fewer LTC facility beds
could result in hospitals having a harder time discharging patients in
need of LTC. The commenters stated that without the ability to transfer
patients in need of LTC to an appropriate facility, people in need of
admission to a hospital might have to wait longer for an available bed.
This could also result in a backup in the emergency department
resulting in longer waits for care. A commenter stated that patients
discharged from hospitals to LTC facilities have more acute clinical
needs than patients discharged to home.
Response: While increased staffing needs in one provider setting
can impact other provider settings, LTC facilities must be able to
demonstrate that the care and services they provide meet the resident's
needs. LTC facilities are responsible for compliance with requirements
for participation, including but not limited to Sec. 483.24, which
requires that each resident must receive, and the facility must
provide, the necessary care and services to attain or maintain the
highest practicable physical, mental, and psychosocial well-being,
consistent with the
[[Page 40888]]
resident's comprehensive assessment and plan of care. This rule
provides flexibilities through phased implementation timeframes and
hardship exemptions, which can provide temporary relief to facilities
that are having workforce issues. We have built in these flexibilities
for facilities while still prioritizing resident safety and quality of
care. The minimum staffing standards support existing regulations and
help to ensure the staff needed to meet the care needs and improve the
LTC facilities' ability to care for patients discharged from the
hospital and prevent hospital readmissions. Although the practices of
other healthcare settings are not within the scope of this rule, we
intend to monitor its impact for unintended system-wide changes that
may hinder or harm patient and resident care. We encourage LTC
facilities to work with local hospitals to ensure safe care patient
transitions. The requirements for participation at Sec. 483.15(e)(1)
are in place to ensure that facilities develop and implement policies
that help facilitate the return of residents to the facility after a
hospitalization. Facilities must have a sufficient number of qualified
staff to meet each resident's needs, to protect resident health and
safety while supporting access to care. We will use available data for
monitoring residents' health, and safety and any unintended
consequences during the multi-year implementation of this final rule.
Comment: Commenters expressed concerns that the proposed rule would
draw funding and staff away from home and community-based services
(HCBS) to facility-based settings. Moreover, this would lead to an
increased unmet need for HCBS, poorer health outcomes for individuals,
and reduced access to training and support for caregivers. Furthermore,
the commenter thought that it would lead to reduced access to
culturally and linguistically appropriate HCBS which will negatively
impact communities of color.
Response: The HCBS workforce comprises a diverse array of worker
categories including workers who provide nursing services, assist with
activities of daily living (such as mobility, personal hygiene, eating)
or instrumental activities of daily living (such as cooking, grocery
shopping, managing finances), and provide behavioral supports,
employment supports, or other services to promote community
integration. While these workers do include nurses (RNs and licensed
practical nurses) and NAs, the HCBS workforce comprises many other
workers (both with and without professional degrees) that are not
included in the minimum staffing requirement. Although there may be
some overlap in demand for staff in LTC facilities and HCBS programs,
we do not have reason to believe the overlap will be significant. We
appreciate the comments, and CMS will continue to monitor these trends.
Over time, additional, useful information will be supplied through
finalized policies in the Medicaid access rule and this rulemaking
concerning Medicaid funds dedicated to the direct care workforce in
HCBS, LTC, and other institutional settings.
Comment: Some commenters included requests for staffing minimums
for other categories of nursing home employees, including full time
social workers and infection prevention control specialists. Other
commenters suggested that CMS conduct research to determine why nurses
are leaving the nursing workforce, noting that, since the COVID-19 PHE,
many staff are going back to school for degrees not related to nursing.
Response: We agree that other LTC facility staff provide important
services for resident well-being. However, suggestions related to
establishing minimum standards for other types of employees are outside
the scope of this final rule. We also agree that it is critical to
understand the drivers of changes in the national nursing workforce and
encourage interested parties to conduct research into these issues that
can inform future policy decisions.
Comment: A commenter urged CMS to conduct research and rulemaking
to enhance social work in nursing homes.
Response: We support the use of social work services in LTC
facilities and encourage interested parties to conduct research into
the care and services provided by social workers and the impacts to
residents' highest practicable physical, mental, and psychosocial well-
being, consistent with the resident's comprehensive assessment and plan
of care. However, suggestions related to establishing minimum standards
for other types of employees are outside the scope of this rule.
Comment: A commenter asked CMS to support and protect union rights
through implementation of a labor relations quality measure.
Response: The protection of union rights through the development of
quality measures or any other means is outside the scope of this rule.
This rule, however, is intended to support all workers in nursing
facilities by ensuring there is sufficient staff to care for residents
safely and thus reducing the burden on existing workers.
Comment: A commenter expressed concern that the proposed rule would
undermine payments for LTC pharmacy services. For example, a facility
census may decline resulting in a decrease in the use of pharmacy
services causing various economic challenges for LTC pharmacies.
Response: We disagree with the commenter's assumption that
implementation of this rule will result in an overall decline in
resident census that undermines reimbursement and affects LTC pharmacy
services. This final rule includes multiple flexibilities for eligible
facilities located in areas affected by pronounced workforce shortages
and provides staggered implementation periods to allow time for
additional workforce development to comply with the requirements of
this rule.
Comment: A commenter made suggestions to add additional items
related to revenue and costs to the Federal cost reports that LTC
facilities must complete and recommended that CMS publicly release that
additional data after it is collected.
Response: Federal cost reporting changes are not within the scope
of this final rule. We note that information collections require
statutory authority. We will take the request under advisement.
Comment: Several commenters asked if every nursing home survey
would assess compliance with the staffing requirements and staffing
adequacy, while other commenters asked if we would bolster the survey
process, to accommodate enforcement of the staffing standard.
Commenters voiced concern about the additional time that would be
required by surveyors to determine compliance with the minimum staffing
requirements, and other commenters questioned whether States would get
more funds for training and technical support to conduct surveys. Some
commenters suggest increasing the State survey budget and the survey
workforce so that enforcement of staffing requirements will be timely
and successful.
Response: We appreciate the comments received on the survey
process. We envision using a combination of PBJ data and onsite surveys
to assess compliance with various aspects of these requirements.
We will publish more details on how compliance will be assessed
after the publication of this final rule in advance of each
implementation date for the different components of the rule. We intend
to use the traditional process of
[[Page 40889]]
communication of information to providers and surveyors via CMS's
Quality, Safety and Oversight Group (QSO) memoranda and publication of
information in the CMS State Operations Manual (internet Only
Publication, 100-07). The links to these resources are listed below.
Policy & Memos to States and CMS Locations [verbar] CMS:
https://www.cms.gov/medicare/health-safety-standards/quality-safety-oversight-general-information/policy-memos-states-and-cms-locations.
Quality Safety & Oversight- Guidance to Laws & Regulations
[verbar] CMS: https://www.cms.gov/medicare/health-safety-standards/guidance-for-laws-regulations.
We are also committed to robustly funding the survey,
certification, and enforcement programs to the extent possible. The
President's FY 2025 Budget calls for an increase in funding for these
important programs and for the survey and certification funding to be
shifted to mandatory spending starting in the FY 2026 budget to better
align the continued need for surveys with the type of funding.
Comment: Several commenters asked for an evidence-based template
and updated surveyor guidance for monitoring and enforcing staffing
levels. In addition, commenters questioned whether surveyors will be
taught principles of evidence-based staffing research so that their
determinations of compliance with staffing minimums are neither
subjective nor the opinion of the surveyor.
Response: We thank the commenters for their feedback. We will
publish more details on how compliance will be assessed after the
publication of this final rule in advance of each implementation date
for the different components of the rule. We envision using a
combination of PBJ data and onsite surveys to assess compliance with
various aspects of the requirements. We note that since the
requirements specify specific staffing minimum thresholds, the
determination of compliance with these thresholds will be objective,
and not subjective. However, our decisions to grant exceptions are
based on criteria that will require the agency to use its best judgment
(for instance, in determining whether a facility has made a good-faith
effort to hire additional staff).
Comment: Many commenters expressed concerns related to the
importance of identifying noncompliance and taking appropriate
enforcement actions so that residents' health and safety are protected.
Commenters asked about the timeframe between the determination that a
provider is found out of substantial compliance with the new staffing
standards and any resultant enforcement actions, citing concerns about
potential significant time lags. Many commenters suggested CMS consider
survey results and PBJ data for compliance determinations and
enforcement actions. Other commenters noted that PBJ data is available
on a quarterly basis and could be used for more frequent compliance
reviews. A commenter asked if day to day fluctuations in staffing will
result in citations. Some commenters suggested rulemaking to adopt
specific enforcement rules for the HPRD numerical minimums. Some
commenters stated that when enforcement actions are taken, they are too
severe. Several commenters urged CMS to establish detailed guidelines
on when a surveyor should assess appropriate penalties at the harm or
immediate jeopardy level whenever there is serious harm, injury,
impairment or death of a resident. Others recognized that enforcement
is critical to ensure successful implementation of the minimum staffing
standards and that nursing homes should know that they face
consequences for substantial non-compliance.
Response: We appreciate and will consider the comments as we move
forward and recognize that rigorous data-driven enforcement will be
critical to the successful implementation of this rule. We will publish
more details on how compliance will be assessed and how enforcement
remedies will be imposed after the publication of this final rule in
advance of each implementation date for the different components of the
rule. We envision using a combination of PBJ data and onsite surveys to
assess compliance with various aspects of the requirements.
Additionally, if finalized, the proposal for revisions to CMPs in the
forthcoming FY 25 SNF payment rule will give CMS more flexibility to
assess fines associated with the severity of the citation.
Comment: The PBJ allows staffing data to be collected from LTC
facilities on a regular basis. Several commenters suggested that CMS
improve PBJ implementation so that it allows facilities to report all
hours worked by staff including nurses and nurse aides and offers
facilities a reasonable opportunity to appeal/correct PBJ data. A
commenter suggested that CMS should send letters to facilities that
submit PBJ data showing staffing levels that do not comply with
requirements and ask for an explanation. Many commenters recommended
monitoring PBJ staffing data and wanted automatic citations issued for
failure to comply with the standards. One commenter suggested that
Federal surveyors use the PBJ data as the basis for citations for
deficiencies and to conduct more frequent reviews of facility
compliance with HPRD minimums than what is currently required.
Response: Per Federal law, staffing data submitted by a facility to
the PBJ system must be auditable back to payrolls and other verifiable
information. Therefore, CMS does not agree that all hours worked by
staff (such as hours that cannot be verified) should be reported and
credited, but auditable back to verifiable information should be
reported and credited to the HPRD calculations (unless they meet the
reporting requirements). Furthermore, facilities have up to 45 days
after the end of each quarter to review and make any corrections needed
to the data prior to submission. Therefore, facilities already have the
opportunity to correct their PBJ data. We note that providers will
retain their ability to exercise existing regulatory provisions to
dispute or appeal citations for noncompliance, such as informal dispute
resolution. Additionally, CMS does inform providers of their staffing
levels prior to public posting. However, we disagree that CMS should
give facilities an opportunity for an explanation, as compliance with
the requirements is based on whether the facility meets the specific
required staffing thresholds, regardless of justification. A facility
that in good faith believes that it cannot consistently meet the HPRD
standards may request an exemption, pursuant to Sec. 483.35(g) as set
out in this final rule. For comments related to automatic citations, we
appreciate the suggestion and note that surveys of compliance and
enforcement actions are conducted pursuant to 42 CFR part 488, subparts
E and F, respectively. We will publish more details on how compliance
will be assessed after the publication of the final rule in advance of
each implementation date for the different components of the rule.
Comment: Several commenters requested that CMS publicly identify
nursing homes that fail to adjust staffing levels for resident acuity.
Other commenters suggest that CMS should include easy to understand
information about whether a nursing home meets the minimum staffing
standards on Care Compare.
Response: As part of CMS' survey and enforcement activities, we
currently publish data for all LTC facilities on the
[[Page 40890]]
Care Compare website. We appreciate the suggestions and are committed
to providing consumers, families, and caregivers with useful
information to help support their healthcare decisions. Care Compare
will be updated to show whether a facility has an exemption and will
note the extent to which a facility falls short of the minimum staffing
standards.
Comment: A commenter suggested that PBJ and Minimum Data Set (MDS)
be improved to ensure compliance with minimum staffing standards.
Response: We appreciate this suggestion, and welcome suggestions
for improvement. However, the commenter did not provide details on how
PBJ and the MDS could be improved.
Comment: A commenter requested that CMS issue guidance prior to the
final rule on additional staffing standards based on resident acuity
and activities of daily living (ADL) needs.
Response: We appreciate the suggestion. CMS will issue
subregulatory guidance to surveyors for specific requirements after the
publication of this final rule in advance of each implementation date
for the different components of the rule. However, we note the existing
regulations require facilities to consider residents' conditions and
acuity when developing their facility assessment to determine the
personnel needed to meet residents' needs. Subregulatory guidance for
this requirement can be found in the State Operations Manual, appendix
PP, sec. 483.70(e) (https://www.cms.gov/medicare/provider-enrollment-and-certification/guidanceforlawsandregulations/downloads/appendix-pp-state-operations-manual.pdf).
Comment: Some commenters suggested that CMS consider ways to
enhance compliance among LTC facilities with automated data collection
techniques or other forms of information technology.
Response: We appreciate the suggestion. CMS remains open to
exploring ways that technology can be leveraged to streamline data
collection and improve compliance and enforcement.
Comment: One commenter expressed concern that PBJ reporting
guidelines are technical and the data submitted do not always reflect
the actual staffing levels. The concern centered around rural providers
with small census using one nurse per shift, the nurse stays onsite for
the entire shift, including the lunch break. However, the PBJ reporting
guidelines always exclude a 30-minute rest period, regardless of
whether the nurse took a 30-minute uninterrupted break.
Response: We appreciate the concern raised by the commenter. It is
very important that PBJ data is auditable. Facilities need to deduct a
30-minute meal-break from each eight-hour shift. As the staffing data
must be auditable back to payrolls, there is no way to audit and verify
the portion of their meal break that was spent working versus eating.
Also, some facilities pay for meal breaks, and some do not. Allowing
some facilities to report hours for paid meal breaks would result in
reporting higher levels of staffing based on whether or not a facility
pays for meal breaks, instead of actual differences in the amount of
direct resident care their staff provide. Therefore, to measure all
facilities equally, we require all facilities to deduct 30 minutes per
shift. Information on this and other policies related to PBJ can be
found on the CMS website for Staffing Data Submission Payroll-Based
Journal: https://www.cms.gov/medicare/quality/nursing-home-improvement/staffing-data-submission.
Comment: One commenter suggested better coordination between State
surveyors and the CMS designated Quality Innovation Network Quality
Improvement Organizations (QIN-QIOs).
Response: We thank the commenter for their feedback. CMS is
committed to ensuring coordination between State surveyors and QIN-QIOs
as they conduct their individual and unique responsibilities.
Comment: We received many recommendations for alternative policies
or strategies for supplementing or enhancing the LTC facility
workforce. Commenters suggested various ways of substituting staff when
determining compliance with HPRD minimums set out in this rule: one
commenter suggested allowing LPNs to substitute for NAs, another
suggested facilities will substitute NAs for LPNs, yet another
commenter related that LPNs and RNs can substitute for NAs in addition
to their own job requirements. A commenter proposed the creation of a
transportation aide role so that residents could move around the
facility, and this would in turn improve quality of life. One commenter
stated that expansion of training for paid feeding assistants would be
beneficial to the residents. The same commenter suggested flexibility
within the regulations to allow technology to supplement the workforce
such as robots, that can deliver food to residents at their tables.
Response: We thank commenters for these recommendations. Under the
current regulations, facilities can already use many of these
suggestions, such as using feeding assistants, transportation aides,
and technology to supplement the nursing workforce in LTC facilities,
paying nurse aides while they are in training, and using LPNs/LVNs to
deliver some NA care. Facilities may continue to implement these
strategies as needed to ensure that all residents receive high-quality
care in accordance with their plan of care and consistent with the
requirements for participation.
Comment: A small number of commenters addressed the relationship
between the proposed requirements and CMS' statutory authority. A
commenter noted that CMS is taking these minimum staffing requirement
actions based on the statutory authority to provide services to attain
or maintain the highest practicable physical, mental, and psychosocial
well-being of each resident, in accordance with a written plan of care.
This commenter urged CMS to establish higher minimum staffing levels in
a way that fulfills this statutory mandate. One commenter suggested
that CMS did not have authority to establish RN staffing standards for
24 hours per day, 7 days per week, and suggested that CMS should
augment the current 8 hours per day, 7 days a week RN services
requirement with a higher minimum RN HPRD to achieve our policy goal.
Finally, one commenter contended that CMS lacks the authority to
finalize the minimum staffing standards, suggesting that CMS cannot
require HPRD standards or increase the current 8 consecutive hours of
registered nurse hours a day 7 days a week minimum standard to 24 hours
a day standard.
Response: We appreciate the comments received on whether or not CMS
has the authority to enact these regulations. As discussed in section
II.A.1. of this final rule, various provisions in sections 1819 and
1919 of the Act provide CMS with the statutory authority for the
requirements of this rule. The Secretary has concluded that these HPRD
levels and RN onsite 24/7 requirements are necessary for resident
health, safety, and well-being, under sections 1819(d)(4)(B) and
1919(d)(4)(B) of the Act, which instruct the Secretary to issue such
regulations relating to the health, safety, and well-being of residents
as the Secretary may find necessary. We agree with the commenter that
section 1819(b)(2) and 1919(b)(2) of the Act, which require facilities
to provide services to attain or maintain the highest practicable
physical, mental, and psychosocial well-being of each resident, also
[[Page 40891]]
supports CMS authority to establish these requirements. Also, sections
1819(b)(1)(A) and 1919(b)(1)(A) of the Act require that a SNF or NF
must care for its residents in such a manner and in such an environment
as will promote maintenance or enhancement of the safety and quality of
life of each resident. While sections 1819(b)(4)(C) and 1919(b)(4)(C)
of the Act state that a facility must provide 24-hour licensed nursing
services which are sufficient to meet the nursing needs of its
residents, and must use the services of a registered professional nurse
for at least 8 consecutive hours a day, 7 days a week, CMS is using
separate authority as described above to establish these new
requirements rather than the authorities found at sections
1819(b)(4)(C) and 1919(b)(4)(C) of the Act. Our goal is to protect
resident health and safety, and the persistent and pervasive safety
issues described in the proposed rule and in this final rule make it
clear that it is necessary to establish new minimum requirements to
fulfill the Secretary's responsibility to establish other requirements
related to resident health and safety.
2. Definitions (Sec. 483.5)
We proposed to revise Sec. 483.5 to include the definition of
``hours per resident day'' (HPRD), that is, staffing hours per resident
per day is the total number of hours worked by each type of staff
divided by the total number of residents as calculated by CMS.\57\ We
also proposed to add the definition of ``representative of direct care
employees'' who is an employee of the facility or a third party
authorized by direct care employees at the facility to provide
expertise and input on behalf of the employees for the purposes of
informing a facility assessment. We received no comments on how we
define hours per resident per day (HPRD). We received no comments on
how we define representative of direct care employees. As such, we are
finalizing the definition of ``hours per resident day'' (HPRD) and
``representative of direct care employees'' as proposed.
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\57\ https://data.cms.gov/provider-data/dataset/4pq5-n9py.
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Final Rule Action: We are finalizing the definition of ``hours per
resident day'' as the total number of hours worked by each type of
staff divided by the total number of residents as calculated by CMS. We
are finalizing the definition of ``representative of direct care
employees'' as an employee of the facility or a third party authorized
by direct care employees at the facility to provide expertise and input
on behalf of the employees for the purposes of informing a facility
assessment.
3. Minimum Staffing Standards (Sec. 483.35(a))
In the proposed rule, we discussed revisions to the Nursing
Services regulations at Sec. 483.35(a)(1)(i) and (ii) to require
facilities to meet minimum staffing standards--0.55 HPRD of RNs and
2.45 HPRD of NAs (see 88 FR 61366 through 61370, 61428). Specifically,
at Sec. 483.35(a)(1)(i) we proposed individual nurse staffing type
standards for RNs and NAs. We proposed to require facilities to meet
minimum staffing standards--0.55 HPRD of RNs and 2.45 HPRD of NAs--as
well as to maintain sufficient additional personnel, including but not
limited to LPN/LVNs, and other clinical and non-clinical staff, to
ensure safe and quality care, based on the proposed facility assessment
requirements at new Sec. 483.71. We also solicited comments on
establishing an alternative total nurse staffing standard, such as 3.48
HPRD, in place of a requirement only for RNs and NAs, or in addition to
a requirement for RNs and NAs that could also encompass other nursing
staff types. We considered an alternative standard of 3.48 HPRD for
total nurse staffing--inclusive of the 0.55 HPRD of RNs and 2.45 HPRD
of NAs minimum standards--based on the literature evidence (see 88 FR
61259 through 61366 for more details). CMS solicited comments on a
minimum total nurse staffing standard of 3.48 HPRD, the necessity of a
total staffing standard, and whether a total staffing standard should
be adopted in place of a requirement only for RNs and NAs, or in
addition to a requirement for RNs and NAs. We also emphasized that
comments on the recommended policy or an alternative, must support and
promote acceptable quality and safety in LTC facilities, which is the
intended goal. We also requested that commenters submit evidence and
data to support their recommendations to the extent possible.
Comment: We received many comments on the numerical HPRD minimum
staffing standards. Commenters offered numerous reasons for supporting
CMS efforts to establish minimum staffing standards, including
increased accountability for facilities regarding the treatment of
staff and residents, and the care provided. Commenters that supported
establishing numerical HPRD standards also noted that such requirements
would assure that safety is not compromised for both staff and
residents. Commenters also stated that the proposed staffing
requirements should be considered as the start of improvements to be
built upon over time, rather than as the singular end goal for
addressing LTC facility safety and quality challenges. Others commended
the Administration for proposing minimum nurse staffing standards,
stating that ``the NPRM [notice of proposed rulemaking] represents a
paradigm shift in nursing home oversight to promote quality of care''.
Another commenter stated, ``we strongly encourage CMS to adopt the
proposed standards. These standards will set a floor (baseline) that
prevents overall resident harm and jeopardy and ensure all residents,
regardless of race or geography, and allows for nursing home to staff
above those standards based on resident acuity.'' Another commenter
noted that CMS must clarify that, ``the minimum staffing levels are
considered to be only for residents with the lowest acuity needs.''
Response: We thank commenters for their support in improving
resident care and safety. We agree that establishing minimum staffing
requirements will promote quality in LTC facilities and ensure safety
is not compromised for both staff and all residents. Facilities must
meet, at a minimum, the 3.48 total nurse staffing, .55 RN, and 2.45 NA
HPRD (as finalized in this rule and discussed in detail later in this
section) regardless of the individual facility's resident case-mix, as
these requirements establish the minimum floor (baseline) for staffing
requirements. We expect that many facilities will need to staff above
the minimum standards to meet the acuity needs of their residents
depending on case-mix and as mandated by the facility assessment
required at Sec. 483.71.
Comment: We received several comments on establishing individual
minimum standards for RNs and NAs. Some commenters supported
establishing individual standards, noting that setting individual
minimum staffing standards will ``avoid aggregating HPRD across job
classifications.'' For example, commenters noted that mandating a
specific number of minimum hours for care provided by NAs would
increase facility accountability and reduce discretion regarding the
type of staff facilities may use to comply with the requirement. In
addition, one commenter noted the specific individual standards for RNs
and NAs would improve some residents' health and quality of life.
Commenters also questioned our use of the acronyms ``NA'' (nurse
aide) versus ``CNA'' (certified nurse aide) and requested clarification
regarding the
[[Page 40892]]
type of staff that would count towards the minimum requirement. Some
commenters supported having a minimum staffing standard for NAs.
However other commenters suggested that CMS require the use of CNAs
since this is a Federal requirement and strongly opposed the use of
``uncertified and untrained staff''. For example, one commenter noted
that nursing assistants are required to meet certification standards
within a specified period and indicated that nursing homes are not
allowed to rely on NAs to provide basic care unless they meet the
training requirements as required.
Response: We appreciate the commenters' support for the minimum
HPRD staffing standard. Current regulations at Sec. 483.35(a)(1)(i)
and (ii) require facilities to have sufficient numbers of licensed
nurses and other nursing personnel, including but not limited to NAs,
available 24 hours a day to provide nursing care to all residents in
accordance with the resident care plans.\58\ Nurse aides include
certified nurse aides (CNAs), aides in training and medication aides/
technicians, which all require training. Specifically, at Sec. 483.5
existing regulations define ``nurse aide'' as any individual providing
nursing or nursing-related services to residents in a facility. This
term may also include an individual who provides these services through
an agency or under a contract with the facility but is not a licensed
health professional, a registered dietitian, or someone who volunteers
to provide such services without pay. Nurse aides do not include those
individuals who furnish services to residents only as paid feeding
assistants as defined in 42 CFR 488.301. As such, we disagree with
having a staffing standard for CNAs only. In addition, in some
facilities there is an overlap in responsibilities between CNAs,
medication aides/technicians, and aides in training. We agree with
commenters that having a separate, specific minimum staffing level
requirement for RNs and NAs is important to improving resident health
and safety and are finalizing this proposed requirement at Sec.
483.35.
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\58\ 42 CFR 483.35, https://www.whitehouse.gov/briefing-room/statements-releases/2022/02/28/fact-sheet-protecting-seniors-and-people-with-disabilities-by-improving-safety-and-quality-of-care-in-the-nations-nursing-homes/.
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Comment: Many commenters who supported establishing numerical
staffing standards recommended ways to strengthen the proposed minimum
HPRD staffing requirements. The commenters stated that the proposed
0.55 RN and 2.45 NA HPRD requirements were ``not sufficient to protect
the health and safety of residents'' and ``risk normalizing staffing
levels associated with poor quality of care. . . .'' Commenters also
noted that facilities in both urban and rural areas already meet far
higher nurse staffing standards than what CMS proposed and as such CMS
should consider strengthening the proposed minimum nurse staffing
standard. Commenters offered varying modifications to strengthen the
proposed minimum nurse staffing standard, which included establishing a
range of minimum staffing standards based on resident acuity and need
for assistance with activities of daily living (ADLs) or establishing a
higher HPRD as the minimum standard. For example, one commenter
suggested that CMS revise the proposal to require facilities to meet a
minimum 0.75 HPRD for RNs and 2.8 HPRD for NAs, noting that many
nursing homes currently staff at an average of 3.63 HPRD which is above
the proposed minimum standard. While some commenters supported
establishing specific minimum requirements for RNs and NAs, several
commenters strongly supported the creation of a minimum total direct
care nurse staffing standard that would include minimum HPRD
requirements for RNs and nurse aides and incorporate LPNs/LVNs either
as part of a minimum licensed nursing standard that includes a minimum
RN HPRD or as a separate minimum LPN/LVN HPRD standard. For example,
one commentator indicated that ``a minimum standard for LPNs would
reinforce a minimum standard of 1.4 HPRD for licensed nurses''. Others
suggested ``LPNs need to count toward either RN or CNA mandated ratios.
One commentator noted that ``LPNs should also be counted in the 0.55 RN
HPRD requirement.'' Commenters who supported the inclusion of LPNs
emphasized the unique role that LPNs play in providing quality care and
the importance of capturing their contributions in a minimum nurse
staffing standard. Commenters indicated that LPNs provide essential
skilled care and critical services that are not within a CNA's scope of
practice. Furthermore, some commenters shared concerns about the
unintended consequences that establishing a minimum nurse staffing
standard that lacks LPNs may have on staff retention and career
advancement. These commenters suggested that our proposal, and the lack
of incorporating LPNs into the requirement, marginalized the
contributions of LPNs in the LTC facility workforce. However,
commentators were not consistent in their suggestions for HPRD ratios
of LPN/LVNs.'' Lastly, many commenters strongly supported a minimum
threshold of 3.48 HPRD for total nurse staffing and suggested
finalizing an even higher numerical standard than the 3.48 total HPRD,
ranging up to 4.2 HPRD.
Response: We appreciate the thoughtful and nuanced comments
received on the proposed minimum HPRD staffing standard and the
suggestions for revision to further strengthen the requirement.
Ensuring that nursing home residents receive safe, reliable, and
quality care is a critical function of the Medicare and Medicaid
programs and a top priority for CMS. As such, requiring Federal minimum
nurse staffing standards will create a consistent minimum floor
specific to nurse staffing levels and reduce the variability in nurse
staffing across States. In addition, while establishing minimum nurse
staffing standards will create broadly applicable standards at which
all residents across all facilities will be at significantly lower risk
of receiving unsafe and low-quality care. We emphasized in the proposed
rule and reiterate here that facilities are also required to staff
above the minimum standard, as appropriate, to address the specific
needs of their resident population (88 FR 61369). We expect that most
facilities will do so in line with strengthened facility assessment
requirements at Sec. 483.71 (88 FR 61368). As stated in the proposed
rule, we will also revisit the Federal minimum staffing standard over
time, as the rule is implemented, to determine whether upward revisions
in staffing levels are needed.
We appreciate the comments received requesting that we incorporate
a total nursing standard that includes a minimum HPRD specifically for
LPN/LVNs. In the proposed rule, we indicated minimum individual
standards for RNs and NAs based on evidence demonstrating that RNs and
NAs have a consistently greater demonstrable effect on quality. While
we believe LPNs, in addition to all staff, are vitally important to
resident care, we detailed in the proposed rule the research evidence
that suggest that a greater RN presence has been associated with higher
quality of care and fewer deficiencies. We also noted literature in
support of having adequate staffing levels, specifically NAs, to
prevent a high rate of unusual patient safety events such as resident
falls.
We recognize the importance of the role of LPN/LVNs staffing in LTC
facilities and acknowledge their increasing responsibilities for
providing resident care. However, we found
[[Page 40893]]
insufficient research evidence that supports a particular minimum
standard for LPN/LVNs nor did we receive supporting evidence for
particular minimum standards for LPN/LVNs from commenters. We also
noted that facilities must maintain sufficient additional personnel,
including but not limited to LPN/LVNs, and other clinical and non-
clinical staff, to ensure safe and quality care based on the proposed
facility assessment requirements at Sec. 483.71 (88 FR 61368).
Additionally, hours worked by LPN/LVNs may be counted toward the 3.48
total nurse staffing HPRD requirement being finalized as part of this
rule.
We agree that a higher HPRD of nursing staff such as 0.75 HPRD of
RNs, 2.8 HPRD of NAs, and 4.1 HPRD of total nurse staffing could
produce increased improvements in safety and quality of resident care
and that the alternative approach to establish a minimum total nursing
standard is one effective way to create improvements while also
providing flexibility. We also recognize that there is evidence that
suggests that a lower HPRD of nursing staff--0.45 HPRD of RNs, 2.15
HPRD of NAs, and 3.30 HPRD of total nurse staffing could lead to a 3.3
percent of care delayed, whereas having no minimum staffing
requirements could result in a higher i.e. a. 5.6 percent of care
delayed. However, we maintain that establishing individual minimum
staffing standards for RNs and NAs specifically is the best approach to
increasing quality and safety given the evidence suggesting that RNs
and higher numbers of NAs significantly improve quality.
We also recognize that establishing a total nurse staffing standard
could produce increased improvements in safety and quality of resident
care. We agree with commenters' assertions that the proposed staffing
standards could be strengthened, and we believe that the addition of a
total nurse staffing standard will promote resident safety and high-
quality care. We have chosen 3.48 HPRD as the minimum total staffing
standard, which is inclusive of individual staff-specific standards, in
light of comments on the proposed rule indicating the value of this
addition and evidence from the 2022 Nursing Home Staffing Study, in
addition to other factors discussed in the proposed rule. Finally, we
share the concern raised by commenters about the potential for
unintended consequences resulting from the absence of an LPN/LVN
standard, noting facilities may be incentivized to terminate LPN/LVNs
and replace them with either nurse aides, RNs or a lower paid
unlicensed staff. A total nurse staffing standard guards against these
unintended consequences. Therefore, we are finalizing a minimum
standard for total nurse staffing and requiring minimum individual
standards for RNs and NAs. Specifically, we are finalizing a
requirement for facilities to provide the minimum 3.48 HPRD of total
nurse staffing, which must include at least 0.55 HPRD of RNs and 2.45
HPRD of NAs. We note that facilities may use any combination of nurse
staffing (RN, LPN/LVN, or NA) to account for the additional 0.48 HPRD
to comply with the total nurse staffing standard. We remain committed
to continued examination of staffing thresholds, including careful work
to review quality and safety data resulting from initial implementation
of finalized policies and robust public engagement. Should subsequent
data indicate that additional revisions to the staffing minimums are
warranted, we will revisit the minimum staffing standards with
continued consideration of all relevant factors.
Comment: Many commenters did not support the proposed rule and
establishing minimum staffing standards, whether at the individual or
total nurse staffing levels. Commenters cited several concerns,
including workforce shortages, costs of implementing the proposed
changes, Medicaid underfunding, the diversity of nursing homes and
their resident needs, and potential unintended consequences. For
example, one commenter stated that ``the proposed rule fails to
consider in a serious way where nursing homes will find the estimated
12,639 additional registered nurses (RNs) and 76,376 additional nurse
aides (NAs) needed to comply with its requirements.'' Other commenters
suggested that compliance with the HPRD minimums will be difficult or
impossible to achieve with staffing shortages and major challenges with
workforce training and development. Many commenters focused on the
challenges faced by rural facilities, noting that they may face greater
challenges recruiting staff.
Several commenters shared concerns regarding the costs and burden
imposed by the proposed rule and opposed a minimum staffing standard
without dedicated funding to support its implementation. These
commenters suggested that the cost of compliance would create
unsustainable financial burdens for facilities and negatively impact
residents by forcing facilities to limit admissions or close. For
example, we received many comments from certain categories of
facilities that expressed concerns about the potential impact of the
minimum HPRD requirements on the operations of their individual
facilities and unique resident populations, such as tribally-owned
facilities. However, several commenters also asserted that existing
facility resources may be allocated to support staffing improvements
and a minimum staffing standard, but indicated that facilities may be
allocating such resources elsewhere. Moreover, commenters opposed to
establishing a minimum staffing standard described the proposal as a
``one-size-fits-all'' numeric standard and strongly encouraged CMS not
to proceed with finalizing the proposed rule, especially as the LTC
workforce continues to rebound from the COVID-19 PHE. These commenters
preferred that staffing standards be regulated at the State level and
shared concerns about conflict between our proposal and States that
already have staffing standards. Some commenters also suggested that
there are currently facilities that demonstrate a high quality of care
delivery, despite not currently meeting the proposed staffing levels.
They also noted that there are facilities with some of the poorest
quality outcomes based on CMS data who currently meet the proposed
staffing levels.
Response: We appreciate the concerns raised by commenters regarding
the challenges that a minimum staffing requirement will impose on LTC
facilities. We also acknowledge the impact of the COVID-19 PHE on the
health care industry, as discussed in the proposed rule, and recognize
the challenges that nursing homes are facing as they relate to
staffing. However, the COVID-19 PHE also highlighted the long-standing
concerns with inadequate staffing in LTC facilities and we reiterate
that evidence has shown that appropriate staffing made a crucial
difference in quality of care as part of the overall response to the
COVID-19 PHE in LTC facilities (see 88 FR 61356).
In the proposed rule, we outlined the need for a minimum nurse
staffing standard noting the consequences of inadequate staffing, such
as poor resident outcomes, adverse events, and delayed or omitted basic
care tasks (88 FR 61355). We also included in the proposed rule an
impact analysis for public comment and responses to comments received
can be found in section VI., ``Regulatory Impact Analysis,'' of this
final rule. We maintain that chronic understaffing continues in LTC
facilities and evidence demonstrates the benefits of increased nurse
staffing in these facilities. Indeed, a number of the comments we
received on the proposed rule further highlighted the danger from a
lack of sufficient
[[Page 40894]]
staffing for residents as well as the negative effects that chronic
understaffing has on the nursing workforce. As such, we believe that
requiring a Federal minimum nurse staffing standard will create a
consistent floor (baseline) across all facilities and reduce the
variability in the nurse staffing HPRD across States. In tandem, we
believe policies finalized and discussed in this rule will help to
advance equitable, safe, and quality care for all residents by reducing
the risk of residents receiving unsafe and low-quality care. Therefore,
we are finalizing our proposal to establish minimum nurse staffing
standards for LTC facilities as discussed in this final rule.
We recognize the concerns raised by commenters regarding the cost
of this rule, requests for additional funding, and workforce
challenges. In light of these concerns, CMS announced a national
campaign to support staffing in nursing homes.\59\ As previously
discussed, CMS will work to develop programs that make it easier for
individuals to enter careers in nursing homes, investing over $75
million in financial incentives such as tuition reimbursement. In
addition, the implementation of the requirements in this final rule are
phased-in to allow all facilities the time needed to prepare and comply
with the new requirements specifically to recruit, retain, and hire
nurse staff as needed. Finally, the rule also finalizes requirements
that will allow for a hardship exemption in limited circumstances.
While we fully expect that LTC facilities will be able to meet our
requirements, we recognize that external circumstances may temporarily
prevent a facility from achieving compliance despite a facility's
demonstrated best efforts. Details regarding the finalized
implementation timeframe and exemption framework are discussed in
sections II.B.5 and II.B.7 of this rule, respectively (that is, a
phased implementation up to 5 years for rural facilities and up to 3
years for non-rural facilities).
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\59\ https://www.cms.gov/newsroom/fact-sheets/medicare-and-medicaid-programs-minimum-staffing-standards-long-term-care-facilities-and-medicaid.
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Comment: Some commenters suggested that the timeframe used to
determine compliance with the minimum HPRD should be set for at least
one year from the date of the survey for which the compliance is being
determined. Specifically, commenters suggested that the lookback period
should cover a full annual certification period and emphasized that
facilities should be held accountable for staffing decisions through an
entire certification period. Comments also suggested that compliance
should be determined by reviewing the facility's quarterly average HPRD
and the lookback period should be no longer than 1 year. For example,
one commenter stated that a quarterly average of a facility's HPRD for
nurse staffing would align more closely to what consumers see on CMS
Care Compare and what is used in the CMS Five-Star Quality System. They
note that this type of consistency helps consumers and providers
understand the requirements and monitor performance.
Response: We agree that creating consistency between what is
publicly reported can better inform consumers and help facilities'
understanding of the compliance requirements. As such, we are not
finalizing our proposal to limit determinations of compliance with
hours per resident day requirements to the most recent available
quarter of PBJ System data submitted in accordance with Sec.
483.70(p). We envision compliance will be assessed by using a
combination of PBJ data and surveyor review and observations. We note
that CMS already uses PBJ in the existing survey process, and we
instruct surveyors to review a report of each facility's most recent
quarter of PBJ data (or additional quarters if warranted), to help
target their investigations of compliance. CMS intends to calculate
each facility's staffing hours per resident per day based on data
required to be submitted to CMS, such as existing data required at
Sec. 483.70(p) (as redesignated in this final rule) for electronic
submission of staffing information (which is submitted through the PBJ
system). As with all regulations, CMS publishes information on how
compliance will be assessed in the State Operations Manual, appendix
PP, and in the survey procedure documents found on the CMS web page for
nursing home surveys.\60\ Similarly, we will publish more details on
how compliance will be assessed after the publication of this final
rule in advance of each implementation date for the different
components of the rule.
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\60\ https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/GuidanceforLawsAndRegulations/Nursing-Homes.
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Comment: In addition to the proposed requirements, we also
solicited comments on the following issues:
The benefits and trade-offs associated with different
staffing standards;
Use of case-mix adjusted staffing HPRD for each facility
(rather than solely the facility's self-reported staffing information)
to assess compliance with the minimum staffing standards, steps CMS can
take to support LTC facilities in predicting what their case-mix
adjusted staff might be and hire in expectation of that adjusted
staffing level, and any resources facilities will need to proactively
calculate their existing HPRD for nursing staff;
Alternative policies or strategies we should consider to
ensure that we enhance compliance, safeguard resident access to care,
and minimize provider burden.
We received few comments related to the specific benefits and
trade-offs associated with different staffing standards. Commenters
stated that a requirement with individual staffing levels for specific
nurse types reduces flexibility, which may result in non-compliance
with the staffing requirements. In contrast, a total nurse staffing
standard or combined total standard with individual thresholds for
specific nurse types offers the facility the flexibility to adjust as
needed to day-to-day shifts in staffing. Moreover, commenters noted
concerns about complying with minimum staffing standards that differ
significantly from State staffing requirements. We also received very
few comments related to adopting a case-mix adjusted staffing HPRD for
each facility to assess compliance with the minimum staffing standards.
However, commenters who provided feedback shared concerns with adopting
case-mix adjustments to staffing HPRD standards, noting that the
adjusted HPRD is derived from MDS data that offers a snapshot of the
past and does not predict future staffing needs. Another commenter also
shared concerns that the data currently used to determine case-mix
adjustments is flawed and should not be used to create acuity-adjusted
staffing requirements.
Response: We thank commenters for their thoughtful feedback in
response to our comment solicitations. We agree that there are varying
approaches to establishing a minimum staffing standard that would
create greater flexibility, such as a implementing a total nurse
staffing standard with individual staffing levels for specific nurse
staff. As discussed, we are modifying our proposal to finalize a higher
total standard that will increase improvements in quality and safety
while providing flexibility for providers in meeting the minimum
standard. We agree with commenters who indicated that there are several
factors to consider when making case-mix adjustments to assess
compliance with the minimum HPRD staffing standards, including the
[[Page 40895]]
need to ensure that facilities are able to proactively predict and
calculate what their case-mix adjusted HPRD for staff might be. We
believe that additional consideration is needed to analyze the use of
case-mix adjusted staffing HPRD for each facility to assess compliance
with the minimum staffing standard and will keep this suggested
approach in mind for future rulemaking.
Comment: We solicited comments on evidence that States relied on
when they adopted their specific minimum nurse staffing standards and
the rate of compliance with the State's staffing standards. We did not
receive comments that provide the evidence that States relied on when
they adopted specific minimum nurse staffing standards, however we did
receive very few comments on the impact of the minimum nurse staffing
standards that States adopted. One commenter stated that overall number
of nursing staff in nursing homes influences quality in nursing homes.
Another commenter noted that ``Washington State already has established
staffing minimums. They are effective, they are enforced, and there is
an established process for waivers.''
We also received very few comments on rates of compliance with
State staffing mandates. For example, one commenter stated that nearly
30 percent of their State's nursing homes have difficultly complying
with their minimum staffing requirement. Another commenter noted that
their State successfully improved compliance with minimum staffing
requirements as a result of the implementation of administrative
penalties for facilities that failed to comply with the State's minimum
HPRD staffing requirement, citing public health data following the
implementation of State's requirements.\61\
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\61\ California Department of Public Health, 3.2 Nursing Hours
Per Patient Day data as of November 6, 2019.
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Response: We appreciate the comments received on compliance with
State minimum staffing requirements, which appears to vary. We believe
that establishing a national floor (baseline) for nurse staffing in
nursing homes will lead to improvements in quality across all States
and reduce disparities in care. However, as mentioned previously, the
provisions of this rule are not intended to, and do not preempt the
applicability of any State or local law providing a higher standard (in
this case, a higher HPRD requirement for total nurse staffing, RNs and/
or NAs, an RN coverage requirement in excess of at least one RN on site
24 hours per day, 7 days a week) than required by this final rule.
Final Rule Action: We are modifying our proposal and finalizing a
requirement for facilities to provide a minimum total nurse staffing
standard of 3.48 HPRD that must include at least 0.55 HPRD of RNs and
2.45 HPRD of NAs. We are not finalizing our proposal to limit
determinations of compliance with hours per resident day requirements
to the most recent available quarter of PBJ System data submitted in
accordance with Sec. 483.70(p).
4. Registered Nurse 24 Hours per Day, 7 Days a Week (Sec.
483.35(b)(1))
The existing LTC facility staffing regulations require an RN to be
onsite 8 consecutive hours a day, 7 days a week (Sec.
483.35(b)(1)).\62\ In other words, an RN is required to be onsite for a
total of 8 consecutive hours out of 24 hours a day. The LTC facility
may decide to allocate all 8 consecutive hours of RN time to one day
shift or an evening shift for a 24-hour day, similarly to the HPRD
proposed for RNs. To address health and quality of care concerns and to
avoid placing LTC facility residents at risk of preventable safety
events due to the absence of an RN, we proposed to revise Sec.
483.35(b)(1) to require LTC facilities to have an RN onsite 24 hours a
day, 7 days a week.
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\62\ 42 CFR 483.35, https://www.whitehouse.gov/briefing-room/statements-releases/2022/02/28/fact-sheet-protecting-seniors-and-people-with-disabilities-by-improving-safety-and-quality-of-care-in-the-nations-nursing-homes/.
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An existing statutory waiver for Medicare SNFs, set out at section
1819(b)(4)(C)(ii) of the Act and implemented at Sec. 483.35(f),
permits the Secretary to waive the requirements of Sec. 483.35(b) to
provide the services of a RN for more than 40 hours a week, including
the director of nursing. We proposed that facilities would use this
process to pursue a waiver of the 24 hours a day, 7 days a week
requirement.
In addition to proposing the 24-hour, 7 days a week requirement for
an RN, we noted that the separate existing requirement for the director
of nursing (DON) at Sec. 483.35(b)(2) would remain. Specifically, all
LTC facilities are required to designate an RN to serve as the DON on a
full-time basis (Sec. 483.35(b)(2)). The current rule stipulates that
the DON can serve as a charge nurse only if the facility has an average
daily occupancy of 60 or fewer residents (Sec. 483.35(b)(3)). Since
the DON must be an RN, the DON is included in the proposed nurse
minimum staffing requirements as an RN. All RNs with administrative
duties, including the DON, should be available for direct resident care
when needed. However, the DON, as well as other nurses with
administrative duties, would likely have limited time to devote to
direct resident care. We are concerned that for some LTC facilities
having the DON as the only RN on site might be insufficient to provide
safe and quality care to residents. This concern was also expressed in
the NASEM 2022 publication discussed in the proposed rule, in which the
NASEM recommended that the DON not be counted in the requirement for an
RN 24 hours, 7 days a week.\63\ Hence, in the 2023 proposed rule we
also solicited comments on the following specific questions:
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\63\ National Academies of Sciences, Engineering, and Medicine.
2022. The National Imperative to Improve Nursing Home Quality:
Honoring Our Commitment to Residents, Families, and Staff,
Recommendation 2B.
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Does your facility, or one you are aware of, have an RN
onsite 24 hours a day, 7 days a week? If not, how does the facility
ensure that staff with the appropriate skill sets and competencies are
available to assess and provide care as needed?
If a requirement for a 24 hour, 7 day a week onsite RN who
is available to provide direct resident care does not seem feasible,
could a requirement more feasibly be imposed for a RN to be
``available'' for a certain number of hours during a 24 hour period to
assess and provide necessary care or consultation provide safe care for
residents? If so, under what circumstances and using what definition of
``available''?
Should the DON be counted towards the 24/7 RN requirement
or should the DON only count in particular circumstances or with
certain guardrails?
Are there alternative policy strategies that we should
consider to address staffing supply issues such as nursing shortages?
We received numerous comments regarding this proposal. Upon
reviewing and analyzing these comments, we are finalizing a revision of
the proposal as described in the responses below:
Comment: Many commenters, including some professional provider
organizations, advocacy groups, and labor organizations supported the
proposed requirement for an RN to be onsite 24 hours a day, 7 days a
week that is available for direct resident care. Some of these
commenters also noted that other experts and organizations have for
many years been supporting a requirement for at least one RN on site at
a LTC facility 24 hours a day, 7 days
[[Page 40896]]
a week. One commenter noted that it was the RN that put the ``skilled''
into ``skilled nursing care'' that residents require for a stay in a
LTC facility. Some of these commenters stated that the current
requirement was not only insufficient but put residents at risk of
preventable safety events. Some commenters also supported the proposal
for a 24/7 RN due to the increased acuity of residents and their
complex medical, physical, and behavioral health care needs. As
commenters noted, LTC facilities are caring for residents with complex
medical and behavioral health needs. They are also caring for a growing
population of short-term residents recovering from serious health care
issues, surgery, or other injuries. Other commenters pointed out the
improved outcomes to residents that result from greater RN staffing.
Commenters also pointed out that greater RN staffing levels are
associated with positive quality measures and fewer quality of care
deficiencies, such as, fewer pressure ulcers; lower restraint use;
decreased infections, including urinary tract infections (UTIs); less
pain and the need for pain medication; improved activities of daily
living (ADLs); less weight loss and dehydration, less use of
antipsychotic medication; more morning care; and lower mortality rates.
Many other commenters, including some industry and provider
organizations, supported the 24/7 RN requirement but were very
concerned about some LTC facilities' ability to comply with this
requirement. Other commenters, for the same reasons, opposed the 24/7
RN requirement. Some commenters contended that the requirement was too
expensive and was an unfunded mandate. While others contended that the
requirement was not feasible due to a lack of available staff. As noted
previously, however, some commenters denied there was a staffing
shortage noting that the ``shortage'' could be resolved by higher pay
and better working conditions.
Response: As demonstrated by the comment summary, we received an
abundance of comments expressing diverse views on the 24/7 RN
requirement. We appreciate the support for the proposal. We agree that
an RN's education, training, and scope of practice is necessary to
provide the skilled care that LTC facility residents require for safe
and quality care. The increased acuity of residents, both short and
long-term, with their correspondingly complex medical, physical, and
behavioral health care needs requires an RN's expertise. In addition,
the literature clearly demonstrates improvement in resident outcomes
when there is an increase in RN staffing. While we acknowledge the
assertions by the commenters who were either concerned about the
feasibility of the proposal or opposed to the proposal, we believe that
the benefits of improving resident health and limiting preventable
safety events by a stronger RN presence are vital. Therefore, we are
finalizing the 24/7 RN proposal with revisions as detailed below.
Comment: Some commenters stated that a 24/7 RN was unnecessary for
resident care. They pointed out that the residents are sleeping during
the night and do not require an RN's services. They also asserted that
the care staff at most SNFs can provide quality care by following care
plans and initiating the protocols established by the RN during the day
without the RN being on site 24 hours a day. They contended that the
only facility where RNs are needed around the clock are hospitals,
especially in the areas of critical care. One organization noted that
according to its members the majority of LTC facilities do not have an
RN on site 24/7.
Response: We agree with the commenters that LPN/LVNs and NAs can
provide quality care by following the care plans and protocols
established by an RN. However, it is the RN's education, training, and
scope of practice, especially in nursing assessment, that is missing
from resident care when an RN is not readily available. Residents can
have changes in their physical and behavioral health at any time of the
day. These changes could possibly require that the nursing staff assess
the resident to determine whether there needs to be a change to a
resident's care, such as the administration of some pro re nata or PRN
\64\ medications; whether consultation with another health care
provider, such as a physician is required; or whether the resident
requires care beyond what the LTC facility could provide, requiring a
transfer to another facility such as an acute care hospital. It is an
RN whose education, training, and scope of practice includes the
nursing assessment skills needed to make these determinations and the
training and expertise to provide the quality of nursing care residents
require in such circumstances.
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\64\ PRN medications are medications that are given as needed
when certain circumstance occur. Those circumstances would be
indicated in the medication order. For example, a PRN medication
could be given when a resident has a temperature over a certain
degree or for agitation. In a LTC facility, it would generally be a
licensed nurse who makes the determination to give a PRN medication.
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Comment: Some commenters not only supported the proposal for an RN
24/7 but also recommended that the requirement be strengthened. Many
commenters were concerned about LTC facilities only being required to
have the RN ``available'' to provide direct resident care and not
requiring the RN to be ``providing'' direct resident care. These
commenters recommended that the requirement be strengthened to require
that the RN be providing direct resident care as that is the level of
care that should be provided in a LTC facility. These commenters agreed
with the 2022 Nursing Home Study that more RN staff should result in
fewer deficiencies in care; however, they also insist that the RN
cannot be simply ``present'' in the LTC facility. They contend that
while having an RN onsite 24/7 in LTC facilities is important for
resident care quality and safety, it is the active contributions and
clinical expertise of RNs that ensures the delivery of skilled quality
care for residents. Other commenters recommended that there be more
than one RN onsite. For example, some commenters recommended one RN for
every 100 residents.
Response: We appreciate the commenters support for the 24/7 RN
proposal. Regarding the commenters that recommended strengthening the
requirement by requiring one RN for every 100 residents, we do not
agree with those comments. We believe that having a RN onsite 24/7 to
help with preventable issues and creating a specific standard to ensure
residents receive on average at least 0.55 hours of RN care per day is
a stronger approach to improve resident health and safety than
requiring one RN for every 100 residents. We are thus finalizing a
total nurse staffing requirement of 3.48 HPRD that must include RN
direct care levels of at least 0.55 HPRD. Although this does not go as
far as requiring direct care from a 24/7 RN would, it will still
provide for greater required RN direct care than current standards do.
These requirements are set forth at Sec. 483.35(b)(1) as finalized in
this rule. Thus, the RN direct care staff requirement will be adjusted
according to the number of residents in the facility. Regarding the
commenters who recommended changing the proposed requirement that an RN
be ``available to provide direct care,'' to require the RN ``providing
direct resident care'', we are not modifying the proposed requirements
to incorporate that comment. The total nurse staffing requirement
finalized in this rule
[[Page 40897]]
contains an RN direct care level of at least 0.55 HPRD. This
requirement along with the requirement for a 24/7 RN available to
provide direct resident care should provide the high-quality, safe care
that residents need.
Comment: In the proposed rule, we specifically solicited comments
on whether the DON should be counted towards the 24/7 RN requirement or
should the DON only count under specific circumstances. Commenters were
divided on this question. Many commenters opposed the DON being counted
towards the 24/7 RN requirement, as well as any other RN that is
assigned to administrative duties. They contended that only RNs
providing direct resident care should be counted towards the
requirement. Still other commenters thought the DON should be included
since they would be onsite at the LTC facility and could provide direct
resident care, if needed. However, other commenters did not oppose
including the DON in the requirement, especially if the resident census
was below 30 residents.
Response: As discussed in the previous comment, we are finalizing
the 24/7 RN requirement to require that the RN is available to provide
direct resident care as proposed. Therefore, if the DON is a RN and is
available to provide direct resident care, then the DON will count
towards this requirement. We are not establishing a specific resident
census for this requirement because we have no reliable evidence upon
which to base a specific number of residents for this requirement.
Comment: Many commenters were concerned about the statutory waivers
cited in the proposed rule and CMS's assertion that the statutory
waiver would apply to the proposed 24/7 RN requirement. They contended
that these waivers diminished the requirement for a 24/7 RN and would
result in a reduced quality of care for residents. Other commenters
also noted that these statutory waivers were difficult to
operationalize and were rarely granted. Specifically, commenters noted
that the requirements for the statutory waiver were difficult for many
LTC facilities to meet, such as the requirement for SNFs to be in a
rural area. Some commenters thought these waivers could actually
undermine the 24/7 RN requirement by enabling too many LTC facilities
to avoid the requirement. At least one commenter recommended that LTC
facilities use the same exemption criteria proposed as Sec. 483.35(g)
(finalized at Sec. 483.35(h) as discussed in this rule), which would
be applied to hardship exemptions for the minimum nurse HPRD standards
set forth at proposed Sec. 483.35(b)(1) (finalized at Sec.
483.35(c)(1) as discussed in this rule).
However, other commenters contended that it was unnecessary for the
RN to even be on site at the LTC facility 24/7. These commenters stated
that part of the 24 hours could be satisfied through some type of
``virtual'' presence by an RN. Commenters suggested that an RN could be
available by phone, internet, or be able to get to the LTC facility
within a certain amount of time, such as 30 minutes. Commenters stated
that a one-size-fits-all approach was unnecessary, and requirements
should be based on resident acuity. Commenters insisted that by
allowing for a part of the 24/7 RN coverage to be virtual, each LTC
facility could determine if their resident population needs an RN on
site 24/7 or whether the RN could be virtually present during a part of
the day. Some commenters specifically recommended that an RN could
virtually support LPNs on the evening and night shifts. There were also
commenters who noted that while there was a process for obtaining a
hardship exemption to the minimum nurse staffing requirement, there was
no waiver or exemption process for the 24/7 RN requirement.
Response: The current requirement is that the LTC facility provide
24 hours of licensed nursing services (RN or LPN/LVN) and RN services 7
days a week for 8 consecutive hours per day as set forth at existing
sections Sec. 483.35(a) and (b). There are two waivers discussed in
Sec. 483.35 of the LTC participation requirements that are set forth
in paragraphs (e) and (f) (redesignated in this final rule as
paragraphs (f) and (g), respectively). The requirements for these
waivers come directly from the statute, specifically section
1819(b)(4)(C)(ii) and 1919(b)(4)(C)(ii) of the Act, respectively. Since
these two waivers are statutory, the waivers can only be removed or
modified in detail by legislation. Thus, the waivers in existing Sec.
435.35(e) and (f) (redesignated as paragraphs (f) and (g) in this final
rule) will not be changed except for conforming changes, which we will
discuss further, to ensure that the statutory waivers do not conflict
with the regulatory flexibilities finalized in this final rule at Sec.
483.35(h). To assist readers and provide clarity, table 2 provides an
overview of the differing requirements for the statutory waiver at
Sec. 483.35(e) and (f) (finalized as paragraphs (f) and (g) in this
rule).
BILLING CODE 4120-01-P
[[Page 40898]]
[GRAPHIC] [TIFF OMITTED] TR10MY24.082
BILLING CODE 4120-01-C
While the details of the statutory waivers, described in table 2,
can only be modified by legislation, we agree with the commenters that
LTC facilities
[[Page 40899]]
need to have some flexibility with the 24/7 RN requirements. We are
especially concerned about those LTC facilities that meet the
requirements for hardship exemptions. If a LTC facility is unable to
meet the minimum staffing requirements as set forth at Sec. 483.35(b)
(as finalized in this rule), it also might not be able to comply with
the 24/7 RN requirement because this could be an indication of the LTC
facility's difficulty in obtaining staff in general. Conversely, if a
LTC facility does not meet the requirements for a hardship waiver, it
should be able to comply with the 24/7 RN requirement by the required
implementation deadlines. Thus, we are finalizing an additional
exemption for facilities that experience a hardship complying with the
24/7 RN requirement. This exemption will be in addition to the existing
statutory waiver process set forth at Sec. 483.35(e) and (f)
(finalized in this rule as paragraphs (f) and (g)). Specifically, we
are revising the requirements at proposed Sec. 483.35(b) (finalized at
Sec. 483.35(c)(1) as discussed in this rule) to indicate that
facilities must have a RN onsite 24 hours per day, 7 days a week that
is available to provide direct resident care, except when this
requirement is waived in accordance with the existing statutory waivers
at Sec. 483.35(e) and (f) (redesignated as paragraphs (f) and (g) as
discussed in this rule) or exempted in accordance with the criteria for
regulatory flexibilities at Sec. 483.35(h). Section 483.35(h)
specifies that a facility may qualify for a hardship exemption of 8
hours a day from the 24/7 RN requirement if the facility is located in
an area where the RN to population ratio is a minimum of 20 percent
below the national average, as calculated by CMS, by using data from
the Bureau of Labor Statistics and Census Bureau. The finalized
regulatory flexibilities and criteria for eligibility at Sec.
483.35(h), including the basis for why such eligibilities have been set
at current thresholds, are discussed in detail in the next section,
section II.B.5. of this rule. We expect that those facilities currently
meeting the 24/7 RN staffing requirement will continue meeting the
requirement.
Furthermore, we are adding a requirement to specify that for any
periods when the onsite RN requirements are exempted in accordance with
the exemption criteria at Sec. 483.35(h), facilities must have a
registered nurse, nurse practitioner, physician assistant, or physician
available to respond immediately to telephone calls from the facility.
At existing Sec. 483.35(e) (finalized at Sec. 483.35(f)) we are
modifying the heading of the paragraph to read ``Nursing facilities:
Waiver of requirement to provide licensed nurses and a registered nurse
on a 24-hour basis''. This paragraph applies to NFs only and the
modified heading helps to clarify those requirements that are
applicable to the waiver set out at section 1919(b)(4)(C)(ii) of the
Act. In addition, we are modifying the language at existing Sec.
483.35(f) (finalized at Sec. 483.35(g)) to revise the heading of the
paragraph to read ``SNFs: Waiver of the requirement to provide services
of a registered nurse for at least 112 hours a week''. This paragraph
would be applicable to facilities that meet the statutory
qualifications for the waiver set out at section 1819(b)(4)(C)(ii) of
the Act.
Given that this rule finalizes an additional regulatory flexibility
for facilities to receive an exemption of 8 hours per day of the 24/7
RN requirement, we want to clarify that facilities who may also meet
the requirements for the statutory waivers as detailed at existing
sections Sec. 483.35(e) and (f) (finalized as paragraphs (f) and (g)
in this rule) will still have the ability to choose which process they
want to pursue to achieve regulatory flexibility from the 24/7 RN
requirement. For example, a SNF may be exempted from 8 hours per day of
the 24/7 RN requirement if they meet the criteria specified in Sec.
483.35(h). If this SNF is rurally located, then in accordance with
existing Sec. 483.35(f) (finalized in this rule at paragraph (g)) this
facility may choose to instead pursue the statutory waiver for SNFs to
achieve greater flexibility from the 24/7 RN requirement based on their
specific situation and ability to meet the criteria outlined by the
statute for the waiver rather than pursue the 8 hours per day exemption
provided under new Sec. 483.35(h).
Final Rule Action: We are finalizing with revisions the proposed
requirement for an RN to be onsite 24 hours a day, 7 days a week and
available to provide direct resident care. The RN can be the DON;
however, they must be available to provide direct resident care. Also,
LTC facilities that qualify for a hardship exemption to the minimum
nurse staffing requirement set forth at Sec. 483.35(b)(1)(i) in
accordance with the criteria outlined at Sec. 483.35(h) (as finalized
in the rule) may also request an exemption of 8 hours per day of the
24/7 RN requirement. We have added this as we believe that additional
flexibility is needed for facilities as they adopt the 24/7 RN
requirement. We have added a requirement at Sec. 483.35(c)(2) to
specify that for any periods when the onsite RN requirements in are
exempted in accordance with Sec. 483.35(h), facilities must have a
registered nurse, nurse practitioner, physician assistant, or physician
available to respond immediately to telephone calls from the facility.
In addition, we are modifying the language at existing Sec. 483.35(e)
(finalized at Sec. 483.35(f)) to revise the heading of the paragraph
to read ``Nursing facilities: Waiver of requirement to provide licensed
nurses and a registered nurse on a 24-hour basis''. We are also,
modifying the language at existing Sec. 483.35(f) (finalized at Sec.
483.35(g)) to revise the heading of the paragraph to read ``SNFs:
Waiver of the requirement to provide services of a registered nurse for
at least 112 hours a week''.
5. Hardship Exemptions From the Minimum Hours per Resident Day
Requirements (Sec. 483.35(g))
We proposed at new Sec. 483.35(g), that facilities could be
exempted from the 0.55 HPRD of RNs and/or 2.45 HPRD of NAs requirements
if they were found non-compliant with the HPRD requirements and met
four eligibility criteria, based on location, good faith efforts to
hire, disclosure of financial information, and were not excluded based
on the prior year's citations, failure to submit data to the PBJ, or
having been designated as a Special Focus Facility. We stated that
determinations regarding exemptions would be made during a survey. We
also proposed that facilities could only receive an exemption from the
proposed minimum HPRD requirements and not the proposed 24/7 RN
requirements. We noted that a waiver of the proposed 24/7 RN
requirements must be granted in accordance with the existing statutory
waivers at Sec. 483.35(e) and (f). We further proposed that the
Secretary, through CMS or the applicable State Agency, would make the
determination about exemption from the HPRD requirements and that such
exemptions would be in effect for one year and renewable annually if
facilities continued to meet the exemption requirements. We received a
large number of comments that addressed exemptions. Comments ranged
from robust objection to any exemptions, to support for exemptions as
proposed or in concept, with both opposing and supporting commenters
recommending a wide variety of specific changes to revise and improve
our proposal. These comments reflected disparate and often opposing
views on the provision of exemptions. In addition to proposing specific
exemption criteria,
[[Page 40900]]
we also solicited comment on several specific questions related to
exemptions.
We discuss and respond to these comments and responses to our
questions in detail below.
Comment: Many commenters objected to allowing any exemption from
the HRPD requirements. Some commenters stated that understaffing
results in falls, injuries, and even death. Some commenters stated that
the proposed exemptions would normalize inadequate staffing, depress
wages, and would be dangerous and undermine or jeopardize the health
and safety of residents. Other commenters stated that every nursing
home resident deserved high quality care, regardless of their
geographic location or other factors. One commenter stated that CMS
must stop putting the financial priorities of the nursing home industry
above the basic needs and dignity of nursing home residents. Some
commenters suggested that certain facilities, including rural
facilities, should be given special consideration, while others
suggested that no facility should be given special consideration.
Several commenters stated that they believed there should be
progressive enforcement of the requirement, with reduced penalties in
clear instances of a good faith effort to meet the staffing standards.
Response: We appreciate all of the commenters' concerns and
suggestions. Our goal is to promote safe, high-quality care for all
residents. We also recognize the need to strike an appropriate balance
that considers the current challenges some LTC facilities are
experiencing, particularly in rural areas. We have decided to retain
the availability of exemptions under certain circumstances for select
facilities, which would include some that are rural, after
consideration of the comments, recognition of both quality of care and
access to care concerns. We note the continued availability of recourse
when there is a quality of care concern, including those that may be
related to safety and staffing availability, such as complaints to
survey agencies, QIOs, and State long-term care ombudsman programs.
Exemptions may remain in place only until the next standard survey, and
we expect any LTC facility receiving an exemption to work toward full
compliance with the staffing standards.
Comment: Some commenters stated that any exemptions should be
limited in number and frequency and must be paired with specific
elements of heightened scrutiny and transparency. Furthermore, the
commenters asserted that the need for such an exemption must be
compelling. One commenter stated that only if facilities, at their
current staffing ratios, are performing well on outcomes such as
hospital readmission rates, nurse turnover, facility acquired injuries,
anti-psychotic medication use, would there be a logical justification
to give them a waiver. Commenters also recommended concrete standards
and clear, measurable, and rigorous criteria for receiving an
exemption. One commenter recommended that CMS narrowly tailor the
workforce shortage exemption. Other commenters suggested many specific
changes, such as:
Capping the number of exemptions a facility can receive,
to avoid facilities that are perpetually exempted;
Prohibiting any facility that does not meet the staffing
requirements from admitting new residents;
Disqualifying facilities operating under an exemption from
any type of value-based purchasing initiatives within either the
Medicare or Medicaid programs;
Requiring facilities with an exemption to demonstrate
progress on reducing turnover and increasing wages;
Appointing an independent entity to monitor performance of
any facility with an exemption;
Ensuring transparency around exemptions through such tools
as prominent display of exemption status on Nursing Home Compare with a
warning about the possible consequences of nursing understaffing,
posted notice within the facility, and specific notice to any
individual/family residing in or seeking admission, as well as the
Long-Term Care Ombudsman Program;
Requiring that the facility's staffing plans demonstrate
consideration of nationally recognized best practices, such as PHI's 5
Pillars of Direct Care Job Quality; and that the facility provide
evidence related to best practices beyond offering prevailing wages,
such as enhanced benefits, expanded training programs, worker surveys
to inform workplace improvements, improved scheduling policies,
participation in job fairs, and partnerships with schools;
Requiring ``good faith efforts to hire and retain staff''
to include documentation of recruiting efforts, a specific method for
calculating and reporting staff turnover, and an explicit target and
plan for reducing turnover, including regular reporting to CMS;
Requiring ``documentation of financial commitment to
staffing'' that includes investments in recruiting and retention, and
evidence of increased wages;
Requiring an alternate viable plan for meeting the needs
of the residents in their care, not solely on financial difficulties;
Establishing a sunset date for hardship exemptions; and
Placing nursing homes granted an exemption on a `do not
refer' list that is distributed to area hospitals and other providers.
Response: We thank the commenters for their suggestions. The
exemption framework provides qualifying LTC facilities with the
opportunity to receive time-limited flexibility upon completion of
several essential documentation and transparency requirements. We
considered each option suggested. While we are not implementing all of
them at this time, we have included some, including around transparency
and we may consider them in future rulemaking. In response to the
concerns raised, we have made some revisions. Specifically, we have
removed the distance criterion and narrowed the availability of
exemptions to those facilities in staff shortage areas where the supply
of applicable healthcare staff (RN, NA, or combined licensed nurse,
which includes both RNs and LVN/LPNs, and nurse aide) is not sufficient
to meet area needs as evidenced by the applicable provider-population
ratio for nursing workforce that is a minimum of 20 percent below the
national average for the applicable exemption (RN, NA, or combined
licensed nurse and nurse aide), as calculated by CMS, by using the
Bureau of Labor Statistics and Census Bureau data. The area is the
geographical area defined as the metropolitan statistical area (MSA) or
nonmetropolitan statistical area (non-MSA) where the LTC facility is
located using data from the U.S. Bureau of Labor Statistics (available
at https://www.bls.gov/oes/current/msa_def.htm). Furthermore, we agree
that transparency to current and potential residents, as well as the
State Long Term Care Ombudsman Program is a necessary element. We are
therefore adding transparency requirements in order to receive an
exemption. First, a facility must post in a prominent, publicly
viewable location in the facility a notice of the facility's exemption
status, the extent to which the facility does not meet the minimum
staffing requirements, and the timeframe during which the exemption
applies. Second, a facility must provide a similar notice to each
resident or resident representative, and to each prospective resident
or prospective resident representative, that includes a statement
reminding residents of their rights to contact advocacy and oversight
entities, as
[[Page 40901]]
provided in the notice provided to them under Sec. 483.10(g)(4).
Finally, the facility must send a copy of the notice to a
representative of the Office of the State Long-Term Care Ombudsman.
Exemption information will also be publicly available on Care Compare.
We considered capping the number of exemptions or establishing
escalating requirements for subsequent exemptions, but at this time,
find that the underlying requirements to obtain an exemption are
sufficient to encourage ongoing good faith efforts to meet the new
requirements, to evaluate facilities quality of care prior to granting
each exemption, and to ensure that residents and their representatives
are aware of the exemption status of the facility.
Comment: Many commenters stated that the proposed exemption process
was unfair and unworkable. Others described it as not meaningful or too
burdensome and limited to be useful. Other commenters supported the
proposed process. One commenter noted that the proposed staggered
implementation dates and exemption criteria reflect a nuanced
understanding of the challenges faced by LTC facilities and called the
exemption criteria reasonable. Another stated that the exemption
process would only postpone the challenges of meeting the minimum
staffing standards. Some stated that small, rural facilities most in
need of an exemption would not be able to meet the criteria to qualify
while others suggested that few facilities at all would be able to
qualify, stating that the criteria will be difficult if not impossible
for most nursing homes to meet in all but the extreme circumstances.
Some commenters urged CMS to streamline the exemption requirements to
offer greater flexibility. Some commenters stated that the process
should not be punitive, but should help facilities comply with the rule
or that the process should protect facilities from monetary penalties
and have checks and balances to ensure facilities are not punished for
not meeting unattainable goals. One commenter recommended that CMS
create a waiver process that is available to all facilities without
exclusions; does not entail citation; is attainable by any facility
that is in need and that is making good faith efforts (reasonable
process); and includes support from a QIO or another party to assist
facilities in securing support resources to meet applicable needs. Some
commenters stated that disparities between criteria for exemptions or
waivers should be minimized and should be ``somewhat uniform'' since
they relate to the issue of insufficient workforce. One commenter
stated that any exemption should be based on the availability of
workers, compensation offered, and working conditions. Other commenters
recommended adding an exemption for unforeseen circumstances, temporary
weather-related staffing reductions, or exigent circumstances. One
commenter noted that their State considers extraordinary circumstances
such as natural disaster, catastrophic event or a national or State-
declared emergency; location in a region that the health commissioner
has declared is experiencing an acute labor shortage; and a verifiable
union dispute as mitigating factors for understaffing. Another
recommended that CMS create a protocol for State agencies to implement
to ensure consistency and provided details of how their State
implemented exemptions to State requirements. Finally, one commenter
stated that they were pleased that compliance with the 24/7 RN
requirement did not imply compliance with the minimum staffing HPRD
standard and that the hardship exemption process cannot be used to
circumvent that [24/7 RN] requirement. Another stated that adding
additional requirements that already have a foundation in regulations
is illogical and risks further erosion of an already fragile system.
Response: We appreciate the comments in support of the exemption
process and have considered the concerns raised about it. We have
determined, in the interest of resident health and safety, that it is
not acceptable to significantly expand the exemption process. However,
based on the feedback from commenters and concerns raised regarding
access to care, as discussed previously we have modified our proposal
to allow facilities that can demonstrate a limited supply of RNs (based
on a provider-to-population ratio 20 percent below the national
average) and meet the exemption criteria to receive an exemption from 8
hours per day of the 24/7 RN requirement. In keeping with the comments
regarding uniformity and exemptions based on worker availability, we
are also finalizing, as part of the exemption process, a comparable
exemption criterion for determining the workforce unavailability
criterion for the total nurse staffing 3.48 HPRD standard that we are
finalizing. Specifically, we will incorporate a provider to population
ratio for combined licensed nurse and nurse aide workforce into the
exemption requirements where such a ratio must be at least a minimum of
20 percent below the national average. As explained in the proposed
rule (88 FR 61378), to calculate whether a LTC facility is in an area
with a shortage of RNs or NAs, we first use the Care Compare data to
identify the State and county where each LTC facility is located. We
then combine these data with information from the U.S. Bureau of Labor
Statistics (available at https://www.bls.gov/oes/ on the counties in
each MSA and non-MSA to identify the MSA or non-MSA where each LTC
facility is located. Next, we identify the total number of RNs and NAs
in each MSA and non-MSA using the Bureau of Labor Statistic's
Occupational Employment and Wage Statistics Query System (available at
https://data.bls.gov/oes/#/home). Afterwards, we calculate the
population for each MSA or non-MSA using population estimates from the
United States Census Bureau by summing the population for all counties
in the MSA or non-MSA (available at https://www.census.gov/data/tables/time-series/demo/popest/2020s-counties-total.html#v2022). Finally, we
calculate whether the LTC facility is located in an MSA or a non-MSA
with a medium or low provider-to-population ratio by comparing the
area's provider-to-population ratio to the average provider-to-
population ratio for the United States. We note that facilities that do
not receive an exemption will have the opportunities afforded by the
enforcement process to address any noncompliance deficiency citations,
such as informal dispute resolution processes and administrative and
judicial appeals. We have determined that this is the appropriate set
of criteria to use for exemptions from both the 24/7 RN requirement and
the 3.48 total staffing standard as it is appropriate to apply the same
criteria for workforce insufficiency (20 percent below the national
average for the applicable staff category) across all exemptions.
Comment: Many commenters suggested that facilities that receive an
exemption should have to demonstrate progress on staffing related
issues. For example, one commenter recommended we add a provision to
require the facility to increase retention to 75 percent or higher if
the facility will utilize an exemption, as there are many methods that
can be utilized to increase staff retention, including flexible work
schedules, bonuses, well-trained managers/supervisors, incentive
programs and much more. This commenter stated that reducing turnover
rates will significantly increase resident care/safety as well as
reduce
[[Page 40902]]
the recruitment burden on managers. Several commenters mentioned
turnover rates in the context of retention and recruiting, and one
suggested that, for RNs and/or CNAs and other nursing staff, if the
turnover rate is higher than 35 percent, a facility should not meet the
good faith effort requirement for an exemption. Another commenter
suggested adding a provision that would bar nursing homes with a
turnover rate higher than the State median from receiving hardship
exemptions.
Response: We thank commenters for these suggestions. At this time,
we are not adding additional requirements related to turnover to
qualify for an exemption. The facility's staffing plan in accordance
with Sec. 483.71(b)(4), however, requires the facility to develop and
maintain a staffing plan to maximize recruitment and retention of
direct care staff, and is considered part of a demonstration of a good
faith effort to hire. Retention and turnover may thus be considered in
evaluating whether a facility is complying with its staffing plan in
seeking exemption. We also note that information on turnover is
publicly available on Care Compare. In 2022, CMS began posting levels
of weekend staffing and rates of staff turnover and using these metrics
in the Five Star Quality Rating System to help provide more useful
information to consumers. In addition, CMS is adopting the Nursing
Staff Turnover Measure for the SNF VBP program beginning with the FY
2026 program year. This is a structural measure that has been collected
and publicly reported on Care Compare and assesses the stability of the
staffing within an SNF using nursing staff turnover. This is part of
the Administration's focus to ensure adequate staffing in long-term
care settings and delivers on a commitment included in the President's
Executive Order 14070, Increasing Access to High-Quality Care and
Supporting Caregivers. Facilities would begin reporting for this
measure in FY 2024, with payment effects beginning in FY 2026. While we
are not adopting these suggestions at this time, we may consider them
for future rulemaking.
Comment: Several commenters objected to the demonstration of
financial commitment as an exemption criterion. Some commenters felt
that this criterion was duplicative of the information that would be
provided in the good faith effort to hire criterion. One noted that the
framework for exemptions was likely to encourage the use of temporary
staffing and that, given the cost of temporary labor, this may create a
wrong impression while accelerating predatory temporary labor pricing.
Another comment recommended requiring facilities that intend to utilize
a staffing exemption provide full disclosure of all financial
documents, including ownership, related parties, profits, tax and
corporate filings, audits, and financial statements and requiring that
these documents be made available within 10 days of the request to
residents, resident responsible parties, executors/trustees of resident
estates, advocates, and regulatory agencies. One commenter suggested
that in order to qualify for an exemption, a facility must demonstrate
that its owners and management are not profiting from the nursing home
or any company that is paid by the facility. Another stated that any
exemption related to claimed financial constraints must be considered
with far more robust transparency requirements. One commenter stated
that the requirement is vague. In response to our question regarding a
spending threshold, several commenters recommended that CMS establish
that facilities must spend 80 percent of revenue on direct care
services, similar to the proposed CMS requirements for HCBS services
\65\ and requirements in four States (New Jersey, New York,
Massachusetts, and Pennsylvania). Another commenter recommended 75
percent as a threshold, with independent confirmation. One commenter
stated that CMS must either conduct or direct the State survey agency
to conduct an audit of the nursing home's finances.
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Response: We thank commenters for these suggestions. We have
considered both the comments supporting and the comments objecting to
the financial commitment criterion. We recognize that the requirement
we are finalizing only requires the facility to document and provide
information when needed to receive an exemption. We believe that the
financial commitment criterion will lead facilities to evaluate their
financial commitment to staffing while leading CMS to better understand
facility investment in staffing and the implications of expanding the
requirement by establishing a threshold, requiring additional
documentation, or other modifications. While we are not adopting these
suggestions at this time, we will consider them for future rulemaking.
Comment: Some commenters specifically objected to the exemption
determination being made after a facility is surveyed and determined to
be out of compliance with the HRPD staffing requirement. Several
commenters indicated that being cited and fined before getting an
exemption was unreasonable. One suggested that extensions of the
exemption period should be automatic ``if conditions persist.'' Many
commenters felt that facilities should proactively be able to apply for
an exemption through the submission of documentation. One commenter was
concerned that the process requires facilities to open themselves up to
additional scrutiny to qualify and that this could mean a provider
opens themselves up to exclusion if a surveyor determines their
insufficient staffing has resulted in harm or inaccurately cites the
PBJ tag. Another commenter stated that facilities are already heavily
penalized for not submitting PBJ data, and this exclusion should be
limited to allow for a temporary lapse, especially when it results from
emergent reasons, such as a disaster that the facility didn't report or
when a facility is unable to submit data, despite trying, due to
technical portal issues. One commenter noted that this would increase
the workload on already over-burdened and underfunded State survey
agencies. Others noted that States already have significant backlogs of
surveys and facilities should not be penalized for that. One commenter
recommended that CMS develop a streamlined process to apply for an
exemption without requiring an onsite survey and noted that the
exemption request process must be simple and not burdensome.
Response: We thank commenters for their feedback. We believe that
the exemption criteria recognizes that some facilities may have
difficulty meeting the new requirements and therefore may obtain an
exemption if they meet the qualifications. However, this is balanced by
the need to ensure residents' health and safety. With respect to a
survey preceding the granting of an exemption, we note that facilities
cannot request, and a State would not conduct, a survey specifically
for the purpose of granting an exemption, but rather that facilities
would be evaluated during a survey, such as the standard
recertification survey, to determine if they were eligible for an
exemption. A survey preceding any determination regarding an exemption
would identify any other deficiencies of the facility, including those
that could disqualify a facility from receiving an exemption and help
ensure that safety and quality of care is maintained. As mentioned
previously, we will publish more details on how compliance will be
assessed after publication of this final rule in advance
[[Page 40903]]
of each implementation date for the different components of the rule.
We intend to use the traditional process of communication of
information via CMS QSO memoranda and publication of information in the
State Operations Manual.
Comment: Some commenters recommended that specific types of LTC
facilities be exempt from the HRPD requirements. One commenter
recommended that Life Plan Communities (similar to Continuing Care
Retirement Communities) be exempt. Some commenters suggested that all
Tribal facilities be exempt from the HRPD requirements. Other
commenters suggested that some specialized facilities (subacute units,
hospital-based SNFs, and distinct part units of hospitals, any facility
in an auto-HPSA) also be exempt from the HRPD requirements. One
commenter recommended exempting nursing homes in States that have
existing staffing ratio requirements for licensure. Others suggested
that facilities with high quality measures at their current staffing
levels be automatically exempted or be qualified to request an
exemption. Some commenters said that they found the lack of
flexibility, waiver, or leniency for communities taking good faith
efforts to comply unfair. Finally, one commenter suggested that all
rural facilities should be exempt.
Response: We thank commenters for these suggestions. As noted
earlier, our goal is to promote safe, high-quality care for all
residents. We also recognize the need to strike an appropriate balance
that considers the current challenges some LTC facilities are
experiencing, particularly in rural areas. We considered establishing
categories for blanket exemptions, but are not adopting any at this
time. Blanket exemptions for an entire category of facilities lacks the
facility-specific assessment required under our proposal. In
particular, we are finalizing a process under which any facility
granted an exemption must have a preceding survey to determine its
compliance with the requirements. However, such compliance
determinations would not be conducted if we were to establish blanket
exemptions. At this time, we want to ensure we are aware of any quality
of care concerns at the individual facility level prior to granting an
exemption. As we gain insight into facility compliance with the
staffing minimums and in the application of the exemption process, we
can consider suggestions to tighten the exemption process in future
rulemaking. We note that hospital providers of long-term care services
(swing-beds) are not subject to the Nursing Services requirements under
Sec. 483.35, but instead are subject to the hospital conditions of
participation, including staffing (Sec. 482.23), as well as specific
provisions of 42 CFR part 483 identified in Sec. 482.58.
Comment: Some commenters objected to using location as an exemption
criterion, while others supported a location criterion. Many responded
to our question regarding the ``right distance'' from another facility
to warrant a hardship exemption, often suggesting an alternative or
stating that mileage is not an indicator of hardship and objecting to
any mileage-based criterion. One commenter stated that the mileage-
based criterion was arbitrarily set and did not account for multiple
facilities in the same area needing to apply for an exemption.
Commenters noted a variety of BLS limitations, geographic features, and
transit system considerations that made the location criteria
problematic. Several commenters suggested that a provider to population
ratio does not reflect the true availability of the workforce, and that
this must be considered when determining eligibility for waivers and
exemptions. One commenter supported the location criterion as proposed
but wanted it to also be applied to the statutory waiver for RNs/
licensed nurses; other commenters voiced similar concerns about the
existing RN/licensed nurse waiver. Some commenters suggested removing
the provider to population ratio, and reducing the mileage criteria to
10 or 15 miles. One commenter noted that the presence of a CAH near an
LTC facility also impacted staff availability, even in the face of
collaborative efforts. One commenter also suggested the mileage-based
criterion be clarified for Tribal facilities to state that for Tribal
facilities, it must be another Tribal facility within 20 miles. A
different commenter suggested the mileage criterion should be 50 miles,
stating that the average daily commute in the United States is 37 miles
one-way (per U.S. Department of Transportation) and that it is not
appropriate to jeopardize the health and welfare of a nursing facility
resident with a staffing exemption for 20 miles when that is 17 miles
less than the average commute of the staff who work at care facilities.
Fifty miles was also suggested by another commenter who also felt the
provider to population ratio should be changed to a more stringent 50
percent below the national average. Another supported 40 percent below
the national average as the requirement. Other commenters stated HPSA
data is not a good criterion to determine exemption status, as the data
only shows how many licensed nurses are in an area and does not
consider how many of those nurses are willing to work in an LTC
facility and that availability should take into consideration
competition from other types of providers. One commenter pointed out
problems with urban/rural definitions and further encouraged including
urban facilities in eligibility for exemptions. Another commenter
stated that the proposed method to determine a workforce shortage area
is unworkable and inaccurate, because it is based on an already
depressed national average. One commenter who objected to any
exemptions stated that every nursing home resident deserved high-
quality care, regardless of their geographic location or other factors.
Many commenters who supported the need for staffing requirements also
objected to exemptions, noting that all residents, regardless of zip
code, are entitled to appropriate professional nursing care. One
commenter recommended re-evaluating these criteria every six months and
one year after implementation and annually.
Response: We thank commenters for these suggestions. We have
considered the many perspectives and potential alternatives presented.
Given that there was not a public consensus on the appropriate distance
and considering the general opposition received in establishing this
specific criterion, we have revised our proposal. We are only
finalizing the applicable provider-population ratio for nursing
workforce (RN, NA, or combined licensed nurse and nurse aide) in the
facility area as a location criterion, removing the additional mileage-
based criterion. As a threshold for determining a workforce shortage,
given concerns raised about workforce unavailability, and in light of
eliminating the distance criterion, we concluded that finalizing the
moderate standard is appropriate. Therefore, we are finalizing that the
provider-population ratio must be a minimum of 20 percent below the
national average, as calculated by CMS, by using the Bureau of Labor
Statistics and Census Bureau data.
Comment: One commenter objected to the use of the term ``good faith
effort'' as too subjective and recommended that any term used must be
objectively measurable. Several commenters were concerned with the term
`prevailing wage' and one suggested CMS should define the term
``prevailing wage'' in a manner that is more consistent with its use
elsewhere in Federal law and
[[Page 40904]]
regulations. This commenter recommended looking to collectively
bargained wage rates as a source of data on competitive wage levels,
counting benefits as well as wages in the determination, and taking
into account wage levels for jobs in other industries with similar
entry requirements and for nursing positions in hospitals, staffing
agencies, and other settings in determining the prevailing wage.
Response: We appreciate these comments and concerns. After
considering all of the information and suggestions presented, we are
finalizing the proposal regarding ``good faith efforts'' and
``prevailing wages'' as published. The language about prevailing wages
is consistent with the statutory language in section 1919(b)(4)(C)(ii)
of the Act in establishing requirements for facility waivers, which
states that `the facility demonstrates to the satisfaction of the State
that the facility has been unable, despite diligent efforts (including
offering wages at the community prevailing rate for nursing
facilities), to recruit appropriate personnel,' Therefore, we believe
that the language used is appropriate. However, while we are not
adopting these suggestions at this time, we may consider them for
future rulemaking.
Comment: In response to CMS's question about additional hardships
that CMS should consider in providing exemptions, some commenters
supported adding financial difficulties/constraints. Commenters noted
that many facilities receive most of their revenue from Medicaid, which
commenters characterized as inadequate in many States to cover the
daily costs of care for the resident. According to commenters, these
facilities would not be able to afford the increased staffing
requirements and would most likely reduce the number of beds, lower the
number of Medicaid residents they admit, or close, leaving many
residents without housing because hospitals and other high-quality
facilities may not admit residents who pose a high risk for negative
outcomes. A commenter suggested that CMS provide exemptions based on
financial hardship such as changes in financial performance as it
relates to provision of care and services to residents, including
financial exemptions based on customary accounting measurements such as
changes in operating income, variances versus annual budget or prior
year performance, and changes in cash flow. Others objected to a
hardship exemption based on the financial condition of the provider.
One commenter stated that we do not allow car manufacturers in
financial distress to produce vehicles without seatbelts or with less
effective crumple zones in front-end bumpers; we do not allow airlines
in financial distress to fly without stewards or qualified pilots and
that adequate staffing should be a core element of any nursing home's
financial plans rather than an extra for those facilities that can
afford it.
Response: We thank commenters for their concerns and suggestions.
We have considered all of the information submitted and, given the
competing nature of those comments and information, it would be
challenging to define exactly what constitutes a financial challenge.
Therefore, we are not at this time including an exemption criterion
based on financial need but are maintaining a criterion based on a
provider to population ratio. We note that facilities will be required
to demonstrate through documentation the amount of financial resources
that the facility expends on nurse staffing relative to revenue prior
to being granted an exemption. While we are not adopting these
suggestions at this time, we may consider them for future rulemaking.
Comment: Some commenters objected to the exclusion criterion for
exemptions, either suggesting less restrictive or more restrictive
exclusion criteria. A commenter stated that CMS should remove all the
proposed exclusion criteria because all facilities should be afforded
an opportunity for an exemption. Another commenter stated that
facilities should not be required to be cited for staffing
noncompliance before being eligible for an exemption and that
facilities should be eligible to apply for an exemption based on the
workforce supply and the facility's good-faith efforts to hire and
retain staff--no exceptions. Some commenters supported the exclusion
criteria and one commended CMS for not considering HPRD exemptions for
providers with a history of staffing concerns, poor care delivery, or
harm or abuse to residents to whom they are entrusted to provide care.
In response to our question about additional exclusions, some
commenters felt CMS should expand exclusions to include Special Focus
Facility Candidates (not just SFFs) and perennial 1-star rated
facilities. Another suggested expanding the criteria that makes a
facility ineligible for an exemption to include facilities that have
recently been cited for failing to meet staffing standards and/or abuse
or neglect of residents. A commenter suggested that CMS give States the
option to tailor the exemption process to align with their existing
frameworks if those States have existing staffing standards and
exemption. Another asked CMS to clearly indicate that the final rule
will not preempt any higher State standards or State consumer
protection and Medicaid Fraud Control Unit's (``MFCUs'') efforts
related to staffing or quality of nursing care in LTC facilities.
Response: CMS has considered these suggestions, balanced these
noted concerns, and determined that, at this time, we will finalize our
proposed exclusion criteria without modification. We note that it is a
long-standing requirement that all facilities must comply with both
State and Federal standards, and therefore, would be held to any higher
standards imposed by a State.
Comment: One commenter specifically supported the 1-year time frame
for exemptions. Many commenters noted that there are not enough
surveyors or that surveys do not occur exactly 1 year apart.
Response: We thank commenters for their support and for voicing
their concerns about the timing of surveys. In response, we are
revising the timeframe for exemptions under Sec. 483.35(h) from 1
year, to the next standard recertification survey. Thus, no matter when
the exemption is initially approved following a survey, it is in effect
until the next standard survey, unless it is removed as a result of a
facility falling into the exclusion category. The exemption can be
removed any time a facility develops any one of the exclusions. Waivers
under Sec. Sec. 483.35(f) (Medicaid nursing facilities) and 483.35(g)
(Medicare skilled nursing facilities) are subject to annual review or
renewal, respectively, pursuant to the waiver language set out in the
Social Security Act.
Final Rule Action: After consideration of the comments, we received
on the proposed rule, we are finalizing our proposal for hardship
exemptions to the HRPD requirements with the following modifications:
We have redesignated the proposed hardship exemption from
the minimum hours per day requirements at Sec. 483.35(g) as new
paragraph (h) in this final rule and revised the heading to also
include a hardship exemption from the ``registered nurse onsite 24
hours per day, for 7 days a week requirements''.
We have revised the location criteria at newly
redesignated Sec. 483.35(h)(1) (proposed Sec. 483.35 (g)(1)) to
eliminate the 20 mile criterion and remove all references to a 40
percent below national average provider-to-population ratio. We are
finalizing at
[[Page 40905]]
newly redesignated Sec. 483.35 (h)(1) (proposed Sec. 483.35 (g)(1))
the requirement that the facility be located in an area where the
supply of applicable healthcare staff (RN, or NA, or total nurse
staffing) is not sufficient to meet area needs as evidenced by the
applicable provider-to-population ratio for nursing workforce(RN, NA,
or combined licensed nurse and nurse aide) that is a minimum of 20
percent below the national average, as calculated by CMS, by using the
Bureau of Labor Statistics and Census Bureau data.
We have modified the requirements at Sec. 483.35(h)(1) to
specify that a facility can receive an exemption from one, two, or all
three of the following requirements, as follows:
(1) The facility may receive an exemption from the total nurse
staffing requirement of 3.48 hours per resident day at Sec.
483.35(b)(1) if the combined licensed nurse, which includes both RNs
and LVN/LPNs, and nurse aide to population ratio in the area is a
minimum of 20 percent below the national average.
(2) The facility may receive an exemption from the RN 0.55 hours
per resident day requirement (Sec. 483.35(b)(1)(i)) and an exemption
of 8 hours a day from the RN on site 24 hours per day, for 7 days a
week requirement (Sec. 483.35(c)(1)) if the RN to population ratio in
the area is a minimum of 20 percent below the national average.
(3) The facility may receive an exemption from the NA 2.45 hours
per resident day requirement at Sec. 483.35(b)(1)(ii) if the NA to
population ratio in the area is a minimum of 20 percent below the
national average.
We have added new requirements at Sec. 483.35(h)(4),
Disclosure of exemption status, to require that the facility:
(1) Posts, in a prominent location in the facility, and in a form
and manner accessible and understandable to residents, and resident
representatives, a notice of the facility's exemption status, the
extent to which the facility does not meet the minimum staffing
requirements, and the timeframe during which the exemption applies; and
(2) Provides to each resident or resident representative, and to
each prospective resident or resident representative, a notice of the
facility's exemption status, including the extent to which the facility
does not meet the staffing requirements, the timeframe during which the
exemption applies, and a statement reminding residents of their rights
to contact advocacy and oversight entities, as provided in the notice
provided to them at Sec. 483.10(g)(4); and
(3) Sends a copy of the notice to a representative of the Office of
the State Long-Term Care Ombudsman.
We are not finalizing paragraph (g)(5)(iv) due to changes
made to exemptions for the 24/7 RN requirement.
We are finalizing, as proposed, requirements for good
faith efforts to hire (Sec. 483.35(h)(2)) and demonstrated financial
commitment (Sec. 483.35(h)(3)).
We renumbered proposed paragraphs (g)(4) through (6) as
paragraphs (h)(5) through (7) in the section accordingly.
We have revised paragraph (h)(7) to provide that the term
for a hardship exemption under Sec. 483.35(h) is from grant of
exemption until the next standard recertification survey, unless the
facility becomes an Special Focus Facility, or is cited for widespread
insufficient staffing with resultant resident actual harm or a pattern
of insufficient staffing with resultant resident actual harm, is or
cited at the immediate jeopardy level of severity with respect to
insufficient staffing as determined by CMS, or fails to submit Payroll
Based Journal data in accordance with Sec. 483.70(p). A hardship
exemption may be extended on each standard recertification survey,
after the initial period, if the facility continues to meet the
exemption criteria in Sec. 483.35(h)(1) through (5), as determined by
the Secretary.
6. Facility Assessment (Proposed Sec. 483.71)
Facility assessments play an important role in ensuring that LTC
facilities develop thoughtful, informed staffing plans to meet the
needs of their specific residents based on case mix and other factors.
The current requirements for the facility assessment are set forth at
Sec. 483.70(e) and require each LTC facility to conduct and document a
facility-wide assessment to determine what resources are necessary to
care for its resident population competently during both day-to-day
operations and emergencies. It must be reviewed and updated annually,
as necessary, and whenever the facility plans for or has any change in
its facility or population that would require a substantial change to
any part of the assessment. The assessment must address or include
evaluation of the resident population, the facility's resources, and a
facility-based and community-based risk assessment that utilizes the
all-hazards approach. For the reasons set forth in the proposed rule,
we proposed to redesignate (that is, relocate or move) the existing
requirements for the facility assessment to its own standalone section
from Sec. 483.70(e) to proposed Sec. 483.71. We also proposed
technical changes throughout the CFR to replace references to Sec.
483.70(e) with Sec. 483.71 based on this proposed change. We also
proposed technical changes throughout the CFR to replace references to
Sec. 483.70(e) with Sec. 483.71 based on this proposed change. For
organizational purposes, we proposed to redesignate the stem statement
for current Sec. 483.70(e) to the stem statement for proposed Sec.
483.71 and existing Sec. 483.70(e)(1) through (3). We proposed to
redesignate Sec. 483.70(e)(1) through (3) as proposed Sec.
483.71(a)(1) through (3), respectively.
At new Sec. 483.71(a)(1)(ii), we proposed to clarify that
facilities would have to address in the facility assessment details of
its resident population, including the care required by the resident
population, using evidence-based, data driven methods that consider the
types of diseases, conditions, physical and behavioral health issues,
cognitive disabilities, overall acuity, and other pertinent facts that
are present within that population, consistent with and informed by
individual resident assessments as required under existing Sec.
483.20, ``Resident Assessment.'' Specifically, we proposed to revise
this paragraph by specifying the ``use of evidence-based, data driven
methods'' and create a link to the requirements for the resident
assessment. Facilities are expected to update their facility assessment
as needed, no less than annually, using evidence-based, data-driven
methods, that consider the needs of their residents and the
competencies of their staff.
We also proposed to revise this paragraph to add ``behavioral
health issues'' to clarify that LTC facilities must consider their
residents' physical and behavioral health issues. At new Sec.
483.71(a)(1)(iii), we proposed to add ``and skill sets'' so the
requirement reads: ``The staff competencies and skill sets that are
necessary to provide the level and types of care needed for the
resident population.'' At new Sec. 483.71(a)(3), we proposed to add a
cross-reference to the existing requirements for facilities to conduct
a facility and community-based risk assessment as part of their
emergency planning resources.
At new Sec. 483.71(a)(4), we proposed to require facilities to
include the input of facility staff, including but not limited to
categories such as nursing home leadership, management, direct care
staff and their representatives, and staff providing other services.
[[Page 40906]]
We proposed at new Sec. 483.71(b)(1) to require facilities to use
the facility assessment to inform staffing decisions to ensure
appropriate staff are available with the necessary competencies and
skill sets necessary to care for its residents' needs as identified
through resident assessments and plans of care as required in Sec.
483.35(a)(3).
In addition, we proposed a new Sec. 483.71(b)(2) to require
facilities to use the facility assessment to assess the specific needs
for each resident unit in the facility, and to adjust as necessary
based on any significant changes in the resident population. Facilities
would also be required, at proposed Sec. 483.71(b)(3), to consider the
specific staffing needs for each shift, such as day, evening, night,
weekends, and to adjust as necessary based on any significant changes
to the resident population.
We proposed at new Sec. 483.71(b)(4) that LTC facilities would
have to use their facility assessment to develop and maintain a
staffing plan to maximize recruitment and retention of nursing staff.
We did not propose to specify how the staffing plan should be developed
or what it must contain. We solicited comments on the operational
challenges or burdens of this proposed provision, as well as how CMS
could best provide oversight of this proposed requirement.
We proposed at Sec. 483.71(b)(5), to require facilities to use the
facility assessment to inform contingency planning for events that do
not necessarily require the activation of the facility's emergency plan
but do have the potential to impact resident care.
Based upon our review and analysis of the comments, we are
finalizing the proposed requirements as proposed with some revisions.
The language we are finalizing and the reasons for those changes are
detailed in the comments and responses below.
Comment: A few commenters supported the move to relocate the
current requirements at Sec. 483.70(c) (Facility assessment to a
standalone) to Sec. 483.71 (Facility assessment). However, other
commenters opposed any changes to the current facility assessment
requirements as unnecessary.
Response: We acknowledge that relocating the facility assessment
requirements might not appear to be a substantial change. However, the
facility assessment requirements are the foundation for any LTC
facility's planning for the staffing and other resources that are
necessary to provide the appropriate care required for its resident
population. This merits a separate requirement and also emphasizes the
importance of the facility assessment. Hence, we are finalizing this
redesignation as proposed.
Comment: Some commenters were supportive of the proposed changes to
the facility assessment requirements. Several commenters were
particularly supportive of the insertion of ``behavioral health
issues'' in Sec. 483.35(a)(1)(ii) in describing the factors the LTC
facility's assessment must address regarding its resident population.
One commenter even stated that the proposed changes to the facility
assessment requirement were one of the most important changes that were
proposed. However, there were also many commenters that opposed the
proposed changes. Some commenters thought that the requirement was
formulaic and many LTC facilities just ``sleepwalked'' through the
process. Some opposed the proposed changes contending that they would
only result in more paperwork and take direct care staff away from
resident care. They contended that there was little, if any, evidence
that the current requirements in any way benefitted residents,
especially regarding nurse staffing. Other commenters noted that the
facility assessment requirement has been essentially ignored by both
LTC facilities and surveyors. They noted that from FY 2021 to FY 2023,
there had only been 592 deficiencies cited regarding the facility
assessment requirement and in only 10 of these cases was it even likely
a financial penalty would be imposed. However, other commenters
indicated that the proposed changes were not necessary because the vast
majority of LTC facilities were already in substantial compliance with
the current requirements.
Response: The comments received regarding facility assessment
demonstrated a diversity of opinions on the proposed changes. We agree
that the proposed changes will strengthen the overall facility
assessment, which we have long viewed as a foundational element to care
and resource planning in LTC facilities. The facility assessment is an
important complement to the minimum staffing requirements finalized as
part of this rule as it sets standards that must be met for staffing
based on actual resident case-mix, not just the floor (baseline)
created by the minimum staffing requirements. We agree with the
commenters that the addition of ``behavioral health issues'' is an
important change and emphasizes the need to consider these issues in
the facility assessment. Thus, we are finalizing the addition of ``and
behavioral health'' at Sec. 483.35(a)(1)(ii) as proposed.
However, we disagree with commenters about the meaning of the
number of deficiencies cited by surveyors. While the number of
deficiencies is relatively low, this is not an indication that the
requirement is being ignored or dismissed by the LTC facilities or
surveyors. As some commenters indicated, the vast majority of LTC
facilities are complying with the facility assessment requirement.
Also, some surveyors might choose to cite a deficiency based on a
requirement set out elsewhere in the LTC participation requirements
instead of the facility assessment requirement. For example, a surveyor
might cite a noncompliance deficiency for the sufficient nurse staffing
requirement set forth at Sec. 483.35(a)(1) rather than the facility
assessment requirement. Regarding the commenters who opined that LTC
facilities were only ``sleepwalking'' through the process, the
governing body is responsible for the quality of care provided to
residents and how the LTC facility's policies are established and
implemented (Sec. 483.70(d)(a)). The medical director is responsible
for the implementation of resident care policies; and the coordination
of medical care in the facility (Sec. 483.70(h)). Hence, it is the
responsibility of both the governing body and the medical director to
ensure that requirements, including the facility assessment
requirement, are complied with at their facility to ensure that
residents receive quality, safe care. To address this concern, we are
finalizing at Sec. 483.71(b) a requirement that the LTC facility must
ensure the active participation of a member of the governing body and
the medical director in the facility assessment process. This is
discussed in more detail below.
Comment: Many commenters supported the proposed facility assessment
changes and recommended the requirement be strengthened. Some
recommended that a tool be developed for LTC facilities to follow in
conducting their facility assessments. Others recommended that LTC
facilities could be required to follow a prescribed method or specific
methodologies to provide some uniformity in the facility assessments
and focus the assessments on resident acuity. They also suggested that
the facility assessments should be reviewed and updated more often,
such as quarterly. A few commenters recommended that the facility
assessment either be included in or structured similarly to the quality
assessment and program improvement (QAPI) program. Some others wanted
to
[[Page 40907]]
require an evaluation of all of the training programs in the facility
assessment process.
Response: CMS thanks the commenters for their recommendations.
However, we will not finalize any of these recommendations as
requirements in this rule. We will continue to evaluate these
suggestions and consider these comments if there is future rulemaking
regarding the facility assessment requirement. Regarding an evaluation
of training programs in the facility assessment, at Sec. 483.95 we
require LTC facilities to develop, implement, and maintain an effective
training program for all new and existing staff; individuals providing
services under a contractual arrangement; and volunteers, consistent
with their expected roles. LTC facilities are required to determine the
amount and type of training necessary based on their facility
assessment as now set forth at new Sec. 483.71. Hence, part of
developing or reviewing and updating the facility assessment would
include determining the amount of and type of training each individual
providing services to residents should receive.
Comment: Several commenters were concerned about the proposed staff
required to be involved in the facility assessment process, although
many other commenters supported the idea that direct care staff should
be closely involved in creating the facility assessments. Some
commenters wanted to specifically name RNs and all other levels of
nursing staff to ensure their input on staffing was included in the
facility assessment. They contended that RNs were in the best position
to determine staffing levels for the various units in the LTC facility.
Other commenters contended that Nas should be specifically named since
they provide most of the direct resident care. Some commenters were
very supportive of our proposal because they believed the LTC
facility's Medical Director should be actively involved in the facility
assessment process. A few also suggested that the governing board be
included in the process. However, other commenters opposed expanding
the requirements for who should be involved in this process, especially
in requiring non-staff or other third parties in the facility
assessment process. Commenters contended that this would be
inappropriate since it is an operational document for the facility.
They suggested that the inclusion of third parties, especially union
representatives, could be disruptive, divisive, and render the facility
assessment ineffective. In addition, there are concerns that third
parties, especially union representatives, would not be primarily
concerned about the residents' care and well-being but the workers they
represent. Specifically, they raised their concerns that union
representatives would be concerned with their members' compensation,
benefits, and working conditions and not the care provided to
residents. To address this concern, a few commenters recommended that
any representatives of direct care workers also be an employee of the
LTC facility. These commenters contended that only another employee
would have the knowledge of the facility and its operations to provide
beneficial input into the facility assessment. Other commenters noted
that the guidance contained in the State Operation Manual that is used
for surveys already indicates that LTC facilities should seek input
from residents, resident representatives, resident families, and family
councils.\66\
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\66\ State Operations Manual, appendix PP Guidance to Surveyors
for Long Term Care Facilities (Rev. 211, 02-03-23), Tag F838,
Guidance sec. 483.70(e) (Rev.: 173, Issued: 11-22-17, Effective 11-
28-17, Implementation: 11-28-17).
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Response: The staff involved in the facility assessment are
essential to the quality and comprehensiveness of the assessment. We
agree with the commenters that all levels of the nursing staff need to
be included in the facility assessment process so that the final
product is comprehensive and provides the maximum benefit to the
residents and the LTC facility. As discussed above, it is the governing
body that is responsible for establishing and implementing the policies
(Sec. 483.70(d)(a)) and the medical director is responsible for the
implementation of that these individuals would also be essential to the
facility assessment process. The most contentious comments generally
regarded the proposal for representatives of direct care staff. We
thank commenters for their suggestions. We agree the purpose of the
facility assessment is to identify the resources and supports needed to
safely care for residents. However, we also believe that individuals
other than facility staff could offer beneficial input for the process.
Input from the representatives of direct care staff, for example,
third-party elected local union representatives, business agents,
safety and health specialists, or a non-union worker's designated
representatives from a worker advocacy group, community organization,
local safety organization, or labor union, could be especially
important. Direct care staff may be hesitant to criticize staffing
decisions of management or fear retaliation. Their representatives
would generally be able to speak more freely and can reflect concerns
that they have heard across a number of staff members. We agree that
representatives who are not themselves employees may not have the
knowledge of the facility or its operations as an employee would;
however, it is the representatives' ability to provide input that
employees might be hesitant to provide themselves that could be
valuable input.
We want to clarify that the requirement for ``direct care staff''
means more than RNs, LPNs/LVNs, and Nas alone. We encourage LTC
facilities to solicit input or even active participation from other
direct care staff, especially physicians, nurse practitioners,
physician assistants, social workers, activity directors, dieticians/
nutritionists, and other therapists. Also, if the LTC facility has
specialized units, such as, memory care, behavioral health, sub-acute,
or ventilator/trach dependent, we encourage the inclusion or input of
staff from those units. Due to the care provided by these specialized
units, their staff could provide valuable input into the staffing and
other resource requirements needed for the residents care for in units.
We also want to clarify our expectations regarding ``active
participation'' for the staff identified in this requirement. LTC
facilities need flexibility in how they conduct, develop, and implement
their facility assessments. Hence, ``active participation'' does not
require that all identified staff or their representatives are at every
meeting or discussion or must approve the final facility assessment.
However, at a minimum, all identified staff should have the opportunity
to present their views and have those views considered by the other
staff that are actively participating in the process. LTC facilities
should determine the level of active participation for each individual
thereafter. For example, if some meetings would focus on nurse
staffing, the LTC facility would not necessarily have to require a
physical therapist or a member of the food and nutrition staff to
attend. Also, the LTC facility could limit the staff who would be
responsible for the final approval of the facility assessment. In
addition, individuals could participate in-person or virtually. For
example, the medical director or member of the governing body could
participate by phone in meetings or provide their input and comments on
drafts in written form. Regarding those individuals whose input should
be
[[Page 40908]]
solicited and considered if received, the LTC facility should actively
solicit input from identified participants. The LTC facility should
determine the best way to contact these individuals to solicit their
input. The input should then be shared with all of the individuals who
are actively participating in the facility assessment process in time
for there to be a discussion of the received input. The time period for
providing input should be reasonable. The individuals from whom input
is being sought would likely need more than a few days or a week to
contemplate what input they want to provide.
Hence, we are revising Sec. 483.71(b)(1) to require that the LTC
facility require the active participation of the nursing home
leadership and management including but not limited to, a member of the
governing body, the medical director, an administrator, and the
director of nursing; and, direct care staff, including but not limited
to, RNs, LPNs/LVNs, Nas, and representatives of direct care staff, if
applicable. The LTC facility must also solicit and consider input
received from residents, resident representatives, family members.
Comment: Some commenters contended that the proposed requirements
conflicted with each other, especially the minimum nurse staffing and
24/7 RN requirements. They also noted concerns about how the facility
assessment requirement worked with these requirements.
Response: All of the requirements in this finalized rule are
designed to both function independently and work together to ensure
that LTC facility residents receive the quality care required for their
health and safety needs. The minimum nurse staffing requirement as set
forth in Sec. 483.35(a)(1) requires LTC facilities to have a minimum
total nurse staffing of 3.48 HPRD with a minimum 0.55 HPRD for RNs, and
a minimum total of 2.45 HPRD for Nas. Unless a LTC facility is exempted
as described in Sec. 483.35(h), each LTC facility must comply with the
requirement. The 24/7 RN requirement is in addition to the minimum
nurse staffing requirement; however, each RN that is on duty and
providing direct resident care also counts towards both requirements.
Hence, there is no conflict between these requirements. The facility
assessment requirement as set forth at Sec. 483.71 is a separate
requirement that is designed to ensure that each LTC facility has
assessed its resident population to determine the resources, including
direct care staff, their competencies, and skill sets, the facility
needs to provide the required resident care. If the facility assessment
indicates that a higher HPRD for either total nursing staff or an
individual nursing category is necessary for ``sufficient staffing'',
the facility must comply with that determination to satisfy the
requirement for sufficient staffing as set forth at Sec. 483.35(a)(1).
The facility assessment requirement ensures that each LTC facility
assesses the needs of its resident population to determine the
resources it needs to provide the care its residents require. However,
if the facility assessment indicates that a lower HPRD or that a 24/7
RN is not required to care for their resident population, the LTC
facility must still comply with those minimum staffing requirements.
Hence, these requirements do not conflict with each other. Each
requirement works independently to achieve the separate goals of a
minimum nurse staffing requirement and an assessment of the resources
that are required to care for the LTC facility's resident population.
They also work together to ensure that each LTC facility is providing
the quality, safe care required for their resident population.
Comment: Some commenters questioned the usefulness of the facility
assessment regarding determinations of daily staffing needs. They
contended that the facility assessment is more global rather than
granular, that is, it cannot assist with the daily changes in resident
acuity.
Response: We acknowledge that resident acuity and daily staffing
needs can vary. LTC facilities must already contend with and adjust for
these changes daily. However, if the facility assessment was conducted
according to the requirements finalized in this rule, LTC facilities
should know the number of staff, the competencies, skills sets they
need, and the other resources needed to care for residents in their
facilities. This should enable LTC facilities to adjust their staffing
and other resources to compensate for resident acuity and changes
needed in daily staffing.
Comment: In the proposed rule, we discussed some of the reasons
input from representatives of direct care representatives could be
important for the facility assessment process. One statement was,
``[a]longside direct care employees, their representatives may also
help ensure facility assessments are up-to-date and used to inform
facility staffing'' (emphasis added) (88 FR 61375). Several commenters
disagreed with the part of the statement emphasized in italics above.
These commenters contended the enforcement role belongs exclusively to
State and Federal surveyors and is never the domain of a third-party
representatives.
Response: We agree with the commenters that the enforcement of the
LTC participation requirements is not within the scope of participation
of third-party representatives. However, the referenced statement in
the proposed rule located at 88 FR 61375 is not referring to any
enforcement role. As stated in the proposed rule, the input from
representatives of direct care workers could be beneficial, especially
when the direct care workers are hesitant to raise concerns with their
employers about the current staffing in the facility. In such
instances, representatives can provide the LTC facility with
assessments and recommendations anonymously from direct care workers
free from the fear of retaliation, which could assist LTC facilities in
ensuring their facility assessments are up to date and accurately
inform facility staffing without retaliation. Ultimately, we believe
that this type of input can positively impact staff leading to better
and safer care for residents. Hence, we are finalizing a requirement
that LTC facilities ensure the active participation of direct care
staff, including but not limited to, RNs, LPNs/LVNs, NAs, and
representatives of direct care staff, if applicable.
Comment: Some commenters contended that the proposed changes
constitute a one-size-fits-all approach that is inconsistent with the
goals of the facility assessment. They contend that the individual
needs of the residents and LTC facilities are not being considered or
acknowledged in the proposed rule.
Response: We do not agree that these requirements utilize a ``one-
size-fits-all'' approach. The minimum nurse staffing requirement as set
forth in Sec. 483.35(b)(1) requires LTC facilities to have a minimum
total nurse staffing of 3.48 HPRD with a minimum 0.55 HPRD for RNs, and
a minimum total of 2.45 HPRD for NAs. Because HPRD involves an
assessment of the total number of hours worked by each type of staff
compared to the actual number of residents in the facility, it is
automatically adjusted for size of facility. With the facility
assessment requirement, each individual LTC facility assesses its own
resident population and the resources needed to care for them, which
will often result in facilities needing to staff higher than the
minimum staffing requirements. Thus, neither of these requirements is
``one-size-fits-all'' because they are tailored to each LTC facility.
The only requirement that is the same regardless of the LTC facility or
its
[[Page 40909]]
resident population is the 24/7 RN requirement. However, this
requirement is designed to reduce the occurrence of preventable safety
events for residents, as well as address health and quality concerns,
which requires at least one RN providing direct resident care
throughout the day. LTC facilities are expected to increase RN coverage
as needed to comply with the minimum nurse staffing requirements and
their facility assessment. The minimum nurse staffing and 24/7 RN
requirements are not justifications for any LTC facility to fail to
provide the direct care staff with the appropriate competencies and
skill sets and other resources required to appropriately care for its
resident population.
Comment: Some commenters were supportive of the requirement for
certain individuals to be involved in the facility assessment process
but recommended more time to comply with the requirement. These
commenters noted that it would be difficult to assemble the staff
required, develop the facility assessment, and a staffing plan in the
usual time allotted after a final rule is published. One commenter
recommended 120 days after the final rule was published, and another
recommended two years.
Response: All LTC facilities should already have a facility
assessment. While it should not take an extended period of time to do
so, CMS is concerned that some LTC facilities might need more time to
comply with the requirements finalized in this rule. For example, some
LTC facilities might need additional time due to staffing issues or a
lack of previous documentation. Hence, we are finalizing a longer
implementation date for the facility assessment requirements in this
rule to allow more time for LTC facilities to come into compliance. We
proposed a 60-day implementation date for the facility assessment
requirements, however, we are modifying our proposal to require
implementation of the facility assessment requirements 90 days after
publication of this final rule. LTC facilities should be using the
facility assessment to determine appropriate staffing needs based on
their resident population's care needs and meet these requirements in
an accelerated manner.
Comment: Commenters were divided on the proposed requirement that
set forth how LTC facilities were to use their facility assessments.
Many commenters opined that additional requirements were unnecessary,
burdensome, and would also be taking direct care staff away from
resident care. There were also many commenters that were supportive,
especially regarding the requirement that the LTC facility use their
facility assessment in making staffing decisions and in developing and
implementing the staffing plan. One commenter was grateful that this
section was clarifying how the facility assessment should be used and
indicated that this made it more meaningful. Other commenters
recommended that the requirement be strengthened to increase its
effectiveness. Some commenters recommended a requirement for an
assessment committee. Other commenters recommended a requirement on
specific items that should be considered or included in the staffing
plan, such as compensation and training for direct care staff.
Response: The new requirement at Sec. 483.71(c) is intended to
provide clarification on how LTC facilities are to use their facility
assessments. While some commenters might argue that it is unnecessary,
we disagree. The facility assessment is the foundation for LTC
facilities to assess their resident population and determine the direct
care staffing and other resources, to provide the required care to
their residents. The facility assessment must be conducted and
developed with the intent of using it to inform decision making,
especially about staffing decisions. The facility assessment must be
used to develop and maintain the staffing plan or the plan to maximize
recruitment and retention of direct care staff. The facility assessment
should identify the numbers of staff, types of staff, the required
competencies and skill sets that staff require to care for the resident
population. Thus, the facility assessment would inform the staffing
plan the LTC facility requires. The facility assessment must also be
used to inform contingency planning. LTC facilities will likely
encounter different events that have the potential to affect resident
care. These events, however, do not necessarily require activation of
the facility's emergency plan. The facility assessment should be used
to inform contingency planning to address these types of events. For
example, direct care staff will call in sick some days. LTC facility
must have contingency plans for when direct care staff cannot come into
work. Hence, we are finalizing Sec. 483.71(c) as proposed.
Comment: Some commenters opposed facility assessment requirements
being used to cite for deficiencies during a survey. Commenters
asserted that surveyors could not determine the quality of the facility
assessment or the staffing plan. Also, they noted that even if the
staffing plan was well developed, its effectiveness depended on so many
factors that LTC facility should not be responsible for any results.
Response: We agree with the commenters that surveyors cannot
determine the quality of the facility assessment. Surveyors determine
whether or not the LTC facility has complied with the facility
assessment requirements as set forth at new Sec. 483.71. Therefore, an
LTC facility could be cited for non-compliance if its facility
assessment failed to contain all the requirements set forth in new
Sec. 483.71 and failed to determine a direct care staffing plan
consistent with facility resident acuity levels.''
Comment: Some commenters were concerned about the potential of
direct care staff, especially nurses, encountering retaliation as a
result of participation in the facility assessment process. These staff
might hesitate to criticize the LTC facility's staffing policies or
make recommendations about staffing that they know will not be endorsed
by the management. Some commenters recommended that nurses have some
protections, such as whistleblower protections.
Response: RNs, LPNs/LVNs, and NAs are critical to a comprehensive
and effective facility assessment. We encourage all direct care staff
involved in the facility assessment process to provide thoughtful and
honest feedback when participating in the facility review and
development process for the assessment. Similarly, management should
not punish or retaliate against direct care staff for providing honest
input. In this rule, we are finalizing a requirement for facilities to
ensure active participation from representatives of direct care staff,
if applicable, as such we encourage staff, especially those who may be
concerned about potential retaliation, to communicate with and utilize
their representatives as a resource for sharing input. In addition, the
Occupational Safety and Health Administration (OSHA) has resources to
help employers learn about recommended practices to keep their
workplaces free of illegal retaliation.\67\
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\67\ https://www.osha.gov/sites/default/files/publications/OSHA3905.pdf.
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Final Rule Action: We are finalizing as proposed the relocation of
Sec. 483.70(e) to a standalone section, Sec. 483.71. We are
finalizing as proposed the addition of ``behavioral health issues'' to
Sec. 483.71(a)(1)(ii); the addition of ``and skill sets'' to Sec.
483.71(a)(1)(iii); and the addition of ``as required'' in Sec.
483.73(a)(1) through (3). We are also finalizing our proposal to
redesignate the stem statement for current Sec. 483.70(e) to the stem
statement for
[[Page 40910]]
proposed Sec. 483.71 and existing Sec. 483.70(e)(1) through (3) as
proposed Sec. 483.71(a)(1) through (3), respectively. We are
finalizing as revised Sec. 483.71(b) to require that the LTC facility
actively require the participation of the nursing home leadership and
management, including but not limited to, a member of the governing
body, the medical director, an administrator, and the director of
nursing; and, direct care staff, including but not limited to, RNs,
LPNs/LVNs, NAs, and representatives of direct care staff, if
applicable. The LTC facility must also solicit and consider input
received from residents, resident representatives, family members, and
representatives of direct care staff. We are also finalizing as
proposed Sec. 483.71(c) that sets out the activities for which the LTC
facility must use the facility assessment, including making staffing
decisions, developing and maintaining a plan to maximize recruitment
and retention of direct care staff, to inform contingency planning for
events that do not necessarily require activation of the facility's
emergency plan.
7. Implementation Timeframe
We proposed to implement the 0.55 RN and 2.45 NA HPRD, the RN
onsite 24 hours a day, 7 days a week, and facility assessment
requirements in three phases, to avoid any unintended consequences or
unanticipated risks to resident care when a facility is developing new
policies and procedures necessary to comply with these requirements.
This would give facilities significant time to recruit additional staff
needed to meet the requirements.
In addition, we anticipate that additional time would be needed to
develop revised interpretive guidance and survey processes, conduct
surveyor training on the changes, and implement the changes in the
Long-Term Care Survey Process system.
For facilities located in urban areas, we proposed that
implementation of the final requirements be achieved in three phases,
over a 3-year period. Specifically, we proposed that--
Phase 1 would require facilities to comply with the
facility assessment requirements (Sec. 483.71) 60-days after the
publication date of the final rule.
Phase 2 would require facilities to comply with the
requirement for a RN onsite 24 hours a day, 7 days a week (Sec.
483.35(b)(1)) 2 years after the publication date of the final rule.
Phase 3 would require facilities to comply with the
minimum staffing requirement of 0.55 and 2.45 HPRD for RNs and NAs
respectively (Sec. 483.35(a)(1)(i) and (ii)) 3 years after the
publication date of the final rule.
For facilities located in rural areas, we proposed the
implementation of the final requirements be achieved in three phases,
over a 5-year period. Specifically, we proposed that--
Phase 1 would require facilities to comply with the
facility assessment requirements (Sec. 483.71) 60-days after the
publication date of the final rule.
Phase 2 would require facilities to comply with the
requirement for a RN onsite 24 hours a day, 7 days a week (Sec.
483.35(b)(1)) 3 years after the publication date of the final rule.
Phase 3 would require facilities to comply with the
minimum staffing requirement of 0.55 and 2.45 HPRD for RNs and NAs
respectively (Sec. 483.35(a)(1)(i) and (ii)) 5 years after the
publication date of the final rule.
For purposes of the implementation timeframe, we proposed to define
``rural'' in accordance with the Census Bureau definition. ``Rural''
encompasses all population, housing, and territory not included within
an urban area \68\ We also solicited public comments on whether a
different definition should be used. We noted that the final
regulations would be effective 60 days following the publication of the
final rule in the Federal Register and solicited public comments.
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\68\ https://www.census.gov/programs-surveys/geography/guidance/
geo-areas/urban-
rural.html#:~:text=Rural%20encompasses%20all%20population%2C%20housin
g,and%2For%20population%20density%20requirements.
---------------------------------------------------------------------------
We received the following comments in response to this
solicitation.
Comment: Many commenters supported a single implementation
timeframe for both rural and urban LTC facilities. They expressed
concerns that workforce shortages existed in both urban and rural areas
regardless of facility location. One commenter stated that the separate
phase-in timeframes would foster competition between urban and rural
facilities, that nursing staff would be recruited away from rural areas
to fulfill the needs of urban areas first, and when it became time for
rural areas to recruit, they would find themselves competing to bring
staff back. Many commenters noted that an extended implementation
timeframe for rural areas would exacerbate existing disparities in the
quality of care for rural residents. Moreover, commenters emphasized
that residents in rural LTC facilities were entitled to the same
quality of care as those in urban and underserved areas. Some
commenters expressed concerns that the proposed implementation
timeframe favored rural areas as they would have not only an extended
phase-in timeframe but also would be able to utilize the exemptions.
Response: We agree that residents in both urban and rural LTC
facilities deserve access to safe and high-quality care and are
finalizing for all LTC facilities, regardless of location, minimum
nurse staffing standards along with a 24 hour per day, 7 day per week
requirement for an RN to be onsite and available to provide resident
care. We also agree with commenters that workforce shortages exist
regardless of facility location, which is why we are finalizing
exemption criteria that focus on the provider-to population ratio
rather than on a facility's rural status alone. Equal access to
exemptions from the requirements of this rule based on a pronounced
unavailability of registered nurses and nurse aides will address this
concern. We do not agree that a staggered implementation will result in
potential employees being recruited away by facilities in urban areas,
as there is no regulation that would prohibit any rural LTC facility
from recruiting and retaining all nursing staff at any time, including
those times when non-rural facilities are actively increasing their own
staffing levels to comply with the requirements of this final rule.
However, we recognize that there is a possibility that potential
employees may opt to relocate if employers offer a more competitive
salary. Additionally, all LTC facilities are required to comply with
the facility assessment requirements at Sec. 483.71 within the same
timeframe, regardless of their location, effective 90 days after
publication of this final rule. As part of the facility assessment, LTC
facilities must develop and maintain a plan to maximize recruitment and
retention of direct care staff.
We continue to recognize that rural areas face myriad challenges
ranging from worker housing shortages to severe transportation
challenges for remote facilities that are unique to their location. We
are thus finalizing, in addition to an exemption framework, a staggered
implementation timeline that allows additional time for rural
facilities to comply with the requirements of this rule.
Comment: Many commenters expressed concerns that the proposed U.S.
Census Bureau definition of ``rural'', for purposes of the proposed
implementation timeframe, does not accurately represent rural areas. In
2022, the U.S. Census Bureau published updated criteria on how it will
define
[[Page 40911]]
urban areas.\69\ An urban area is comprised of a densely settled core
of census blocks that meet minimum housing unit density and/or
population density requirements. To qualify as an urban area, the
territory identified according to criteria must encompass at least
2,000 housing units or have a population of at least 5,000 and rural
consists of all territory, population, and housing units located
outside urban areas.\70\ Commenters expressed concern that the revised
definition is too narrow, would exclude many areas that historically
have qualified as rural or areas that fall under other Federal or State
definitions of ``rural'' and that as a result, many LTC facilities in
such areas would not qualify for the proposed extended implementation
timeframe for rural areas. Numerous commenters suggested a wide variety
of sources for alternative definitions of ``rural'' that CMS should
consider using. A few commenters suggested aligning the definition of
``rural'' with other Medicare programs in order to promote consistency
and assure access to services in rural communities that depend on LTC
facilities for care delivery.
---------------------------------------------------------------------------
\69\ 87 FR 16706, March 24, 2022 (https://www.federalregister.gov/documents/2022/03/24/2022-06180/urban-area-criteria-for-the-2020-census-final-criteria).
\70\ https://www.census.gov/programs-surveys/geography/guidance/
geo-areas/urban-
rural.html#:~:text=Rural%20encompasses%20all%20population%2C%20housin
gand%2For%20population%20density%20requirements.
---------------------------------------------------------------------------
Specifically, these commenters suggested using the ``rural''
definitions from the Medicare Rural Hospital Flexibility Program, or
the CMS-SNF-IRF wage index. Numerous other commenters suggested that
CMS use an alternative definition that is used by other Federal
programs and agencies. Commenters suggested these alternative
definitions to address concerns that the current definition is not
sufficiently accurate. Commenters suggested using definitions from the
Office of Management and Budget (OMB),\71\ or the Federal Office of
Rural Health Policy (FORHP.) \72\
---------------------------------------------------------------------------
\71\ https://www.ruralhealthinfo.org/topics/what-is-rural.
\72\ https://www.hhs.gov/guidance/document/defining-rural-population.
---------------------------------------------------------------------------
Response: We appreciate the varied comments received on the
proposed ``rural'' definition. While most commenters did not support
the use of the Census Bureau's definition of ``rural'' and suggested
using alternative definitions, there was not a consensus about which
definition of ``rural'' would be most appropriate to use for the rule.
However, we do acknowledge that using the Census Bureau definition of
``rural'' for this rule could mean that counties that were considered
rural prior to the Census Bureau updates in 2022 or under alternative
Federal definitions such as the Office of Management and Budget (OMB),
would now be considered urban. For example, if we were to use the
Census Bureau's definition of ``urban'', 2,645 counties would be
classified as urban,\73\ while if we were to use OMB's definition of
``urban'', 1,252 counties would be considered ``urban.'' \74\
Furthermore, the 2022 urban area delineations issued by U.S. Census
Bureau removed the subcategories of urbanized areas (encompasses a
population of 50,000 or more people) and urban clusters (encompasses a
population of at least 2,500 and less than 50,000 people).\75\ This
means that towns as small as 5,000 people are delineated as urban areas
with no differentiation between small towns and large cities.
---------------------------------------------------------------------------
\73\ A list of all 2020 Census Urban Areas from the U.S., Puerto
Rico, and Island Areas sorted by Urban Areas Census (UACE): https://www.census.gov/programs-surveys/geography/guidance/geo-areas/urban-rural.html.
\74\ Core Based Statistical Areas (CBSAs), Metropolitan
Divisions, and Combined Statistical Areas (CSAs): https://www.census.gov/geographies/reference-files/time-series/demo/metro-micro/delineation-files.html.
\75\ https://www.ruralhealthinfo.org/topics/what-is-rural.
---------------------------------------------------------------------------
We agree that the definition used in the rule should be consistent
with the definition used in other Medicare programs and note that the
definition of ``rural'' from OMB has been used by the critical access
hospital requirements (see 42 CFR 485.610 \76\), and rural emergency
hospital requirements (see section 1886(d)(2)(D) of the Act \77\ and 42
CFR 485.506 \78\).
---------------------------------------------------------------------------
\76\ https://www.ecfr.gov/current/title-42/chapter-IV/subchapter-G/part-485/subpart-F/section-485.610.
\77\ https://www.ssa.gov/OP_Home/ssact/title18/1886.htm.
\78\ https://www.ecfr.gov/current/title-42/chapter-IV/subchapter-G/part-485/subpart-E.
---------------------------------------------------------------------------
Based on the considerations of the comments and suggested
alternatives, we are finalizing to define ``rural'' in accordance with
the OMB definition. OMB designates counties as Metropolitan (metro),
Micropolitan (micro), or neither. ``A Metro area contains a core urban
area of 50,000 or more population, and a Micro area contains an urban
core of at least 10,000 (but less than 50,000) population. All counties
that are not part of a Metropolitan Statistical Area (MSA) are
considered rural.'' \79\
---------------------------------------------------------------------------
\79\ https://www.hhs.gov/guidance/document/defining-rural-population.
---------------------------------------------------------------------------
Comment: Many commenters stated that the adoption of a final rule
establishing minimum staffing in LTC facilities was essential. However,
the commenters suggested various implementation timeframes. Many
commenters recommended that CMS shorten the implementation timeframe to
less than five years, with some suggesting that a shorter
implementation timeframe would motivate facilities to begin recruiting
and retaining staff to meet the finalized requirements as soon as
possible. A commenter suggested that the LTC facilities would be able
to meet the standards in a shorter phase-in because the proposed
minimum nursing standards were relatively low and that the nursing
staff needed would not need more than two hours of training.
Conversely, numerous other commenters suggested that CMS implement
a phase-in timeframe of more than five years for all LTC facilities.
One commenter expressed that the proposed phase-in timeframes did not
allow sufficient time to recruit, train and graduate enough RNs due to
the shortage of available seats in nursing schools. The commenter
suggested that an unintended consequence of the proposed rule would be
to force LTC facilities to hire nurses that might not be qualified and
the LTC facilities would not have the time to train new staff ``to
ensure competency'' and as a result, the LTC facilities would meet the
minimum nursing requirement, but the residents would still be at risk
due to the untrained staff. A commenter expressed that the additional
time would allow facilities the time and financial support needed to
``build out the necessary education and workforce infrastructure, so
that hiring of the additional staff can happen.'' Moreover, one
commenter suggested that CMS delay the implementation timeframe of all
LTC facilities ``to at least 5 years after the date of the final rule,
with an additional at least 36-month allowance period for facilities to
hire staff once the workforce is available''.
Response: We agree with the commenters that the minimum staffing
requirements are essential and are finalizing them with the revisions
described in this rule. In determining the question of the appropriate
timeline for implementing these changes, we sought to strike a balance
between ensuring a higher level of resident safety through earlier
implementation and assuring that the implementation of these changes is
not so aggressive as to result in unintended facility closures or
resident census reductions, both of which could negatively impact the
[[Page 40912]]
ability of residents to receive care in a location that is close to
their loved ones. In addition to considering comments regarding the
exact implementation timeframe, we also considered the totality of the
many flexibilities that are included in this final rule, including
finalization of the proposed exemptions to the NA and RN HPRD
requirements, and the addition of exemptions for the total nurse 3.48
HPRD requirement and for the 24 hours per day, 7 days per week RN
requirement. As such, we are finalizing the implementation timeframe as
proposed for all non-rural LTC facilities to complete implementation 3
years after the publication date of this final rule and all rural
facilities will complete implementation 5 years after the publication
date of this final rule. We believe that this is the most appropriate
approach to implementation in light of the conflicting public comments
on the subject of the implementation timeframes, the many revisions
that we have made to the policies within this rule, and our policy goal
of improving the care of all LTC facility residents while avoiding
unintended consequences. We strongly encourage all LTC facilities to
begin working towards full compliance as quickly as possible.
Comment: Numerous commenters suggested that CMS outline interim
milestones gradually increasing each year until LTC facilities meet the
final RN and NA HPRD requirements. They stated that this approach would
allow for LTC facilities to slowly adapt to the new minimum staffing
requirements while continuing to provide safe and quality care. In
addition, this approach would discourage last-minute hiring practices
by LTC facilities.
Response: Taking into consideration conflicting comments, we have
structured the implementation of the final policy discussed in this
rule to occur in three phases; Phase 1 requires facilities to comply
with the facility assessment requirements; Phase 2 requires facilities
to comply with the requirement for a facility to provide 3.48 HPRD of
nursing care and to have a RN onsite 24 hours a day, 7 days a week; and
Phase 3 requires facilities to comply with the minimum staffing
requirements of 0.55 and 2.45 HPRD for RNs and NAs respectively. We are
phasing in the 3.48 HPRD total staffing requirements during Phase 2 as
we expect LTC facilities will be able to comply quickly with this
requirement since facilities may use any combination of nursing
staffing types (RN, LPN/LVN, or NA), rather than using specific nursing
staffing types to meet this requirement. However, we expect LTC
facilities that are currently staffing in excess of 3.48 HPRD of total
nursing care will not reduce their total nurse staffing HPRD when the
3.48 HPRD for total nurse staffing requirement is implemented. LTC
facilities should continue using the facility assessment to determine
staffing needs above the finalized minimum standards to provide safe
and quality care based on resident acuity.
Beyond these phases, we do not agree that it is appropriate to
specify additional interim milestones. We believe that milestones
should be specific to the needs of each facility and as part of the
facility assessment, a LTC facility must have a facility-wide
assessment to determine what resources are necessary to care for its
residents. That assessment should consider, among other things, the
facility's resident population, staff competencies and necessary skill
set, its resources, and other factors that may affect the care it
provides. The facility must use this facility assessment to inform
staffing decisions to ensure that there are a sufficient number of
staff with the appropriate competencies and skill sets necessary to
care for residents' needs and to develop and maintain a plan to
maximize recruitment and retention of direct care staff. The facility
assessment will drive the interim steps that need to occur at each
facility in preparation for complying with the requirements of this
final rule.
Comment: A commenter suggested that we delay the implementation of
the requirements until CMS has completed a pilot program first.
Response: We appreciate this suggestion. However, we believe that
the minimum staffing requirements need to be implemented as soon as
possibly feasible to ensure residents receive safe and quality care in
LTC facilities. Therefore, CMS will not proceed with a pilot program.
Comment: Commenters expressed that there is not a need for a longer
implementation timeframe for other underserved communities, as there is
no evidence available to show that LTC residents in underserved
communities have lesser needs than LTC residents in other areas. They
stated that it would only perpetuate poor quality care for underserved
communities, especially among racial and ethnic minorities.
Response: We agree with the commenters. Residents in LTC facilities
should have access to safe and quality care, regardless of location.
Therefore, we are not extending the implementation timeline for
medically underserved communities.
Comment: A commenter recommended that we consider ways to
incentivize nursing homes to meet the minimum nursing requirements on
an accelerated timeline.
Response: In the FY 2023 SNF Prospective Payment System (PPS) Rule
final rule (87 FR 47570 through 47576), we adopted the Total Nursing
Hours per Resident Day Staffing (Total Nursing Staffing) measure for
the Skilled Nursing Facility Value-Based Purchasing (SNF VBP) Program-
beginning with the FY 2026 program year. LTC facilities that have SNF
beds participate in the SNF VBP Program and are subject to payment
incentives under the program. Therefore, these LTC facilities will be
incentivized to comply with the minimum staffing requirements because
as their performance on the Total Nursing Staffing measure for the SNF
VBP Program improves, those facilities may receive more favorable
payment adjustments. Specifically, the LTC facilities that increase
their staffing levels in FY 2025 and FY 2026 may receive either
increased improvement or achievement scores under the SNF VBP Program.
CMS awards achievement points to facilities that perform higher than
the 25th percentile of national SNF performance on program measures and
awards improvement points to facilities that have shown improvements in
the measure performances from the baseline period to the performance
period. Performance on the Total Nurse Staffing measure in the FY 2025
and FY 2026 performance year will affect payment adjustments in FY 2027
and FY 2028 program years respectively. LTC facilities that focus early
on increasing their nurse staffing levels and otherwise improving
performance on quality measures, such as the Total Nurse Staffing
measure would have the opportunity to identify areas for further
improvements and to take the necessary steps to address them. This
could result in higher scores for the Total Nurse Staffing measure and
subsequent increases in payment adjustments.
Regardless of these incentives, LTC facilities should use the
facility assessment to determine appropriate staffing needs based on
their resident population and their needs and meet these requirements
in an accelerated manner to ensure timely and quality care to
residents.
Comment: Some commenters recommended that we provide technical
assistance to help LTC facilities meet the minimum staffing
requirements within the proposed timeframe.
Response: As noted previously, CMS is launching an initiative to
help increase the LTC workforce by committing over $75 million in
financial incentives, such as tuition
[[Page 40913]]
reimbursement, to support the recruitment, training, and retention of
nursing staff.\80\ CMS is also exploring the potential to provide
technical assistance to LTC facilities through the Quality Improvement
Organizations and additional opportunities to provide technical
assistance to those facilities impacted by this final rule. CMS will
release interpretative guidance following the publication of the rule
ahead of each implementation phase.
---------------------------------------------------------------------------
\80\ FACT SHEET: Biden-Harris Administration Takes Steps to
Crack Down on Nursing Homes that Endanger Resident Safety [verbar]
The White House: https://www.whitehouse.gov/briefing-room/statements-releases/2023/09/01/fact-sheet-biden-harris-administration-takes-steps-to-crack-down-on-nursing-homes-that-endanger-resident-safety/.
---------------------------------------------------------------------------
Comment: A few commenters expressed that State governments must
plan for and readjust funds in order to meet the increased expense that
hiring staff will require. According to the commenters, currently most
State Medicaid rates do not cover the daily cost of care for residents
and will not be able to cover the increased cost of labor this minimum
staffing requirement will incur. Commenters suggested working with
State Medicaid officials and managed care plans to ensure appropriate
reimbursement rates while a commenter recommended that we establish
advance funding for State governments.
Response: While the actions of State governments, including
Medicaid rates, are not within the scope of this rule, we note that the
policies in this rule will be phased in over a period of up to 5 years.
Final Rule Action: After consideration of the comments, we received
on the proposed rule, we are finalizing the following implementation
timeframe as follows:
Rural facilities (as defined by OMB):
++ The requirement related to the Facility assessment at Sec.
483.71 must be completed 90-days after the publication date of this
final rule.
++ The requirement related to providing 3.48 HPRD for total nurse
staffing at Sec. 483.35(b)(1) and the requirement related to 24/7
onsite RN at Sec. 483.35(c)(1) must be implemented 3 years after the
publication date of this final rule.
++ The requirements related to providing 0.55 RN and 2.45 NA HPRD
at Sec. 483.35(b)(1)(i) and (ii) must be implemented 5 years after the
publication date of this final rule.
Non-rural facilities:
++ The requirement related to the Facility assessment at Sec.
483.71 must be completed 90 days after the publication date of this
final rule.
++ The requirement related to providing 3.48 HPRD for total nurse
staffing at Sec. 483.35(b)(1) and the requirement related to 24/7
onsite RN at Sec. 483.35(c)(1) must be implemented 2 years after the
publication date of this final rule.
++ The requirements related to providing 0.55 RN and 2.45 NA HPRD
at Sec. 483.35(b)(1)(i) and (ii) must be implemented 3 years after the
publication date of this final rule.
These regulations are effective 60-days following the publication
of the final rule in the Federal Register. The implementation date for
the specific requirements are listed in detail in tables 3 and 4.
[GRAPHIC] [TIFF OMITTED] TR10MY24.084
[GRAPHIC] [TIFF OMITTED] TR10MY24.085
C. Severability Clause
Finally, we stated and continue to affirm that, to the extent a
court may enjoin any part of the rule, the Department of Health and
Human Services intends that other provisions or parts of provisions
should remain in effect. Any provision of this final rule held to be
invalid or unenforceable by its terms, or as applied to any person or
circumstance, shall be construed so as to continue to give maximum
effect to the provision permitted by law, unless such holding shall be
one of utter invalidity or unenforceability, in which event the
provision shall be severable from this final rule and shall not affect
the remainder thereof or the application of the provision to persons
not similarly situated or to dissimilar circumstances. For instance,
the specific HPRD and 24 hour, 7 day a week RN staffing requirements
finalized at Sec. 483.35(b)(1) and (c)(1) could independently make
improvements in the number of staff present at a LTC facility--the
continuity of any one of the numeric standards would be helpful, and
they do not require enforcement of the others to improve conditions at
LTC facilities. We also note that the Medicaid reporting provisions of
this final rule regarding the percent of payments spent on compensation
for direct care and support staff workforce operate independently of
mandated levels of nurse staffing--this is a reporting requirement, and
the information about Medicaid expenditures on compensation for direct
care and support staff workforce is important for CMS and the public in
helping determine whether Medicaid service payments are economic and
efficient, as well as adequate to support sufficient access for
beneficiaries to high quality care.
[[Page 40914]]
D. Consultation With State Agencies and Other Organizations
Section 1863 of the Act (42 U.S.C. 1395z), requires the Secretary
to consult with appropriate State agencies and recognized national
listing or accrediting bodies, and appropriate local agencies, in
relation to the determination of conditions of participation for
providers of services. We held two listening sessions on June 27, 2022,
and August 29, 2022, to allow all stakeholders, including State
agencies and other organizations, to voice their concerns about the
impact of a staffing standard, and took into consideration comments
provided by State agencies.
Pursuant to section 1863 of the Act, in addition to publishing the
proposed rule in order to solicit the views of States, we received
comments from 11 State and local government organizations.
III. Medicaid Institutional Payment Transparency Reporting Provision
(Sec. Sec. 438.72 and 442.43)
A. General
In response to concerns about transparency in the use of Medicaid
payments and chronic understaffing in Medicaid institutional services
(discussed in detail in our proposed rule at 88 FR 61381 through
61384), we proposed new Federal requirements to promote public
transparency around States' statutory obligation under section
1902(a)(30)(A) of the Social Security Act (the Act) and around the
quality requirements in section 1932(c) of the Act for services
furnished through managed care organizations (MCOs) and prepaid
inpatient health plans (PIHPs) under our authority under section
1902(a)(4) of the Act.\81\ Specifically, we proposed to add new Federal
requirements to promote better understanding and transparency related
to the percentages of Medicaid payments for nursing facility and
Intermediate Care Facilities for Individuals with Intellectual
Disabilities (ICF/IID) services that are spent on compensation to
direct care workers and support staff. As noted in 88 FR 61382, this
proposal was specific to nursing facility and ICF/IID services, which
we at times may refer to collectively in this preamble as
``institutional services.'' We also noted in 88 FR 61382 that unlike in
sections I. and II. of this rule, we will not be referring to LTC
facilities, as this section (section III. of the final rule) focuses on
Medicaid-certified nursing facilities and ICFs/IID, which are not
referred to as LTC facilities. As discussed in the proposed rule at 88
FR 61383, we relied on several sections of the Act for our authority to
propose these reporting requirements. Section 1902(a)(30)(A) of the Act
requires State Medicaid programs to ensure that payments to providers
are consistent with efficiency, economy, and quality of care and are
sufficient to enlist enough providers so that care and services are
available to beneficiaries at least to the extent as to the general
population in the same geographic area. Section 1902(a)(6) of the Act
requires State Medicaid agencies to make such reports, in such form and
containing such information, as the Secretary may from time to time
require, and to comply with such provisions as the Secretary may find
necessary to assure the correctness and verification of such reports.
---------------------------------------------------------------------------
\81\ Throughout this section, section III. of the final rule,
the use of the term ``managed care plan'' means managed care
organization (MCOs) and prepaid inpatient health plans (PIHPs).
---------------------------------------------------------------------------
Under our authority at section 1902(a)(6) of the Act, and
consistent with section 1902(a)(30)(A) of the Act, we proposed at Sec.
442.43 to newly require that State Medicaid agencies report, at the
facility level, on the percent of payments for nursing facility and
ICF/IID services that are spent on compensation for the direct care and
support staff workforce. While some States have voluntarily established
similar transparency policies or initiatives, we noted our belief that
a Federal requirement is necessary and would be more effective to
generate more meaningful and comparable data and support transparency
nationwide.
As discussed in our proposed rule at 88 FR 63184, we proposed that
the reporting requirement at Sec. 442.43 would apply not only to
services provided under a fee for service (FFS) delivery system, but
also when long-term services and supports (LTSS) systems are covered
through managed care. For States that contract with MCOs and PIHPs to
cover services delivered by nursing facilities and ICFs/IID, we
proposed that States report annually on the percent of payments made to
nursing facilities and ICFs/IID that is spent for compensation to
direct care workers and support staff. Section 1932(c) of the Act lays
out quality assurance standards with which States must comply when
delivering Medicaid services through MCOs. This includes services
delivered by MCOs authorized under section 1932(c), which requires the
Secretary to both monitor States and consult with States on strategies
to ensure quality of care. Additionally, based on our authority under
section 1902(a)(4) of the Act to specify methods of administration that
are necessary for proper and efficient administration of the State
plan, we also proposed to apply the requirement to services delivered
by PIHPs.
In addition, while we noted in the proposed rule at 88 FR 61383
that our proposal focused on institutional services, this proposal
(which is being finalized in this rule) is consistent with efforts to
address the sufficiency of payments for HCBS to direct care workers and
access to and the quality of services received by beneficiaries of HCBS
finalized in the Ensuring Access to Medicaid Services final rule
published elsewhere in this Federal Register.
We received comments on our proposal. The following is a summary of
these comments and our responses.
Comment: A number of commenters expressed broad support for the
proposal to require States to report on the percent of Medicaid
payments that nursing facilities and ICFs/IID are spending on
compensation to direct care workers and support staff, and to make this
information publicly available. Many of these commenters expressed
concerns about low worker wages and chronic understaffing; a few
commenters noted that low wages to institutional direct care workers
and support staff have a disproportionate impact on women and people of
color who make up a large proportion of this workforce. Many supportive
commenters noted that collecting these data will help demonstrate the
links between Medicaid payment rates, worker compensation, staffing
levels, and quality of care. Commenters noted that more transparency
and accountability in the use of Medicaid funds may address public
mistrust of how facilities are spending Medicaid payments, empower
beneficiaries to advocate for more investment in quality care, and
ensure public resources are being allocated for adequate staffing
levels, wages, and benefits.
A few commenters provided anecdotal examples of when facilities
have received temporary or long-term rate increases, but the increases
were not passed along to staff. A few commenters noted that while
interested parties might cite low Medicaid payment rates as a barrier
to fair compensation, there is inadequate evidence to support this
statement due to the lack of transparent and uniform reporting on
Medicaid payment rates; these commenters indicated that a reporting
requirement could help clarify concerns regarding the sufficiency of
Medicaid payment rates.
A few commenters noted that this information could be useful to
[[Page 40915]]
researchers and policymakers. One commenter noted this proposal would
create a better understanding around compensation differences across
States, which will help to inform future policy improvements and help
policymakers better understand where to target interventions for
facilities that are outliers in terms of workforce compensation that
may affect the quality and quantity of care provided to residents.
Response: We thank commenters for their support.
Comment: A number of commenters did not support finalizing the
proposed reporting requirement, although many expressed general support
for the principle of payment transparency. Many of these commenters
indicated that the reporting requirement would pose an unreasonable
burden on State Medicaid agencies and nursing facilities and ICFs/IDD.
One commenter noted that the requirements might have a disproportionate
negative impact on smaller facilities that have fewer streamlined
administrative processes.
A number of commenters representing both nursing facilities and
ICFs/IID raised concerns that the proposal did not directly address
Medicaid payment rates, which commenters believed are insufficient to
support high-quality care or increases in direct care worker and
support staff compensation; some of these commenters asked that we not
finalize this proposal and instead propose requirements that States
must regularly review Medicaid payment rates. Some of these commenters
also suggested that without an increase in Medicaid payment rates to
help offset the additional administrative burdens associated with
reporting, facilities may have to redirect resources away from training
and supervision, or some facilities may close.
A few commenters noted that the requirements as proposed,
particularly the definition of direct care worker and reporting
timeframes, do not align with current reporting requirements in the
commenters' respective States. The commenters asked that we either not
finalize the proposed provision or that we analyze existing State
reporting requirements to ensure that any new Federal reporting
requirements are not duplicative or misaligned with State reporting.
A few commenters representing ICFs/IID suggested finalization of
the proposed requirements be delayed until we take into consideration
differences between ICFs/IID and nursing facilities. These commenters
stated that differences include variations in size, location, and
physical layout; staff responsibilities; and services offered to
residents, including active treatment and community engagement. A few
commenters suggested that ICFs/IID should be exempted from the
requirements if they are finalized.
Response: We acknowledge that complying with this reporting
requirement will necessitate the use of resources and time on the part
of providers and States. We believe that the value of the data
collected through their efforts makes this use of resources and time
worthwhile. As discussed further in this section, we are finalizing our
definitions of compensation and direct care workers at Sec. 442.43(a)
with modifications to better account for the costs of clinical
supervision, training, and other expenses that are essential to high-
quality care. Additionally, as discussed further in this section, we
are finalizing our proposal at Sec. 442.43(b) to require only
aggregated data reported at the facility level and by worker category
(direct care worker or support staff), which we believe will limit
burden on both providers and States.
We believe that, generally speaking, States and providers should
already have information about the amount of Medicaid payments
providers receive for specific services, and that providers likely
already track expenditures for wages and benefits for their workers. We
also believe that the aggregated reporting will be easier for States to
validate and incorporate into their existing auditing processes.
While section 1902(a)(30)(A) of the Act does not provide us with
authority to require specific payment rates or rate methodologies,
section 1902(a)(30)(A) of the Act does provide us with authority to
oversee that States assure that payments are consistent with
efficiency, economy, and quality of care and are sufficient to enlist
enough providers so that care and services are available under the
plan, at least to the extent that such care and services are available
to the general population in the geographic area.
For managed care, section 1932(c)(1)(A)(ii) of the Act similarly
does not speak explicitly to Medicaid provider payment rates but
requires that States' quality strategies include an examination of
other aspects of care and service directly related to the improvement
of quality of care. Further, section 1932(c)(1)(A)(iii) of the Act
authorizes the proposals being finalized in this section of this final
rule, which enable States to compare payment data among managed care
plans in their program; this could provide useful data to fulfill their
statutory obligations for monitoring and evaluating quality and
appropriateness of care. This authority under section 1932(c)(1)(A)(ii)
and (iii) of the Act is extended to PIHPs through our authority under
section 1902(a)(4) of the Act.
We will be making the reporting methodology and reporting template
for the requirements finalized at Sec. 442.43 available for public
comment through the Paperwork Reduction Act notice and comment process,
which will give the public the opportunity to provide specific feedback
and help us align the methodology and reporting process with existing
State practices to the greatest extent possible. However, we
acknowledge that because State processes, timelines, and definitions
vary, it may not be possible to align all details of the reporting
process with existing practices in multiple States. We therefore plan
to provide technical assistance, as needed, to facilitate further
alignment with States' current reporting practices, to the greatest
extent possible.
We decline to exclude ICFs/IID from the reporting requirement, as
we do not believe such an exclusion would be warranted. We note that
specific concerns related to ICF/IID reporting are addressed throughout
section III. of this final rule.
Comment: One commenter stated that we already collect multiple data
sets that could be used to approximate the information that would be
subject to the proposed reporting requirement, including: direct care
salary, benefits, and hours for freestanding nursing facilities using
the Medicare Cost Report; Medicaid fee-for-service per diems in upper
payment limit reporting; and quarterly supplemental payment information
through the Medicaid Budget and Expenditure Systems (MBES) and in CMS-
64 reports. This commenter stated that we should use existing Federal
data to approximate the proposed metrics, which the commenter believed
would reduce administrative burden and ensure consistent calculations
across Medicaid programs. A few commenters noted that facilities
already complete cost reports and suggested that researchers and
regulators interested in Medicaid expenditures could obtain spending
information from these cost reports.
One commenter stated that Medicaid wage and benefit data are
available in some States while Medicaid financial data are not
available in other States; the commenter stated that while it would be
ideal to have more detailed information on wages and benefits, the
commenter did not believe that most State Medicaid programs would have
this information available without developing a more
[[Page 40916]]
comprehensive financial reporting system.
Response: We disagree that these data are readily available from
existing data sources currently collected by CMS. The data sources that
the commenter listed would not provide information about Medicaid
revenues at the facility level. We note, for instance, that the
Medicare Cost Reports do not break out Medicaid revenues, nor are they
completed by providers who do not bill Medicare. Other data sources
cited by the commenters, such as the upper payment limit (UPL)
reporting and quarterly supplemental payment information are data
collection efforts related to provider payments that are intended for a
different purpose and do not provide the information we intend to
capture with the reporting requirement at Sec. 442.43. We also note
the supplemental payment reporting data does not capture the whole
provider payment (that is, base plus supplemental payments).
Additionally, the UPL reporting provides estimates of Medicaid payments
to facilities; States have flexibility in how they calculate their UPL,
using the best and most recent data available to the State either
through Medicare cost reports or State-specific cost reports.
We also disagree that nationally comparable data could be
extrapolated from current cost reports, given the variations among cost
reporting forms, practices, and delivery systems. A number of States do
not make cost reporting data readily available to the public in a way
that facilitates easy analysis.
We agree with the commenter who observed that data are not
consistently available from all States. As discussed throughout this
section (section III. of the final rule), we have designed the
requirement to promote greater consistency and transparency while also
attempting to minimize burden for States, particularly those States
with less experience collecting and tracking wage data, as well as for
providers.
Comment: A few commenters did not believe that the reporting
requirement as proposed would yield consistent or fully transparent
data, given the differences among facilities, their payment models,
current reporting practices, case mixes, size, geographical location,
staffing requirements, and staff roles. A few commenters also noted
that States have different wage laws that could impact the percent of
Medicaid payments that facilities allocate to direct care worker and
support staff compensation.
Response: We believe the diversity among facilities and State
reporting practices and employment laws is why a broad, national
reporting requirement is necessary to help establish baseline data
measuring investment in the direct care and support workforce. We note
that the requirement is constructed so that States will report an
aggregate percentage that will allow for national comparisons, as well
as facility-level data that will allow for more granular differences
among facilities to be identified.
Comment: A few commenters expressed concern that the reporting
requirement would result in the generation of misleading data and
perpetuate the idea that facilities' expenditures on any expenses other
than direct care worker compensation are invalid or go only to profit.
A few of these commenters suggested that facilities use Medicaid
payments for a variety of expenses such as providing residents with
private rooms, improving facility ventilation, evaluating and testing
emergency preparedness plans, and other non-compensation activities
that improve residents' care and safety. These commenters expressed
concerns that reporting on the percent of Medicaid payments going only
to compensation for direct care workers or support staff would lead
policymakers to draw erroneous conclusions about facilities'
expenditures and discourage increased investment in long-term care or
the raising of Medicaid rates. One commenter expressed opposition to
what they regarded as an underlying assumption that facilities are not
allowed to be profitable.
Response: The purpose of this requirement is not to suggest that
all non-compensation facility expenditures (including profits that may
incentivize the operation of a facility) are invalid, or that any
particular such expenditure is not worthwhile. Specifically, we are not
suggesting that by designating certain activities as administrative and
by not considering certain expenditures as compensation under this
rule, they are inessential. Rather, we believe, as has been discussed
at length in the proposed rule at 88 FR 61381 through 61382, that
understaffing in facilities is well-documented and chronic and poses a
risk to the quality of care. As a result, we have made addressing
compensation for institutional direct care workers and support staff a
particular focus of this requirement. We also remind commenters that
the purpose of this rule is to create a reporting requirement, not to
require that a certain amount of the Medicaid payment be allocated to
compensation. We believe that gathering data on what percent of
Medicaid payments facilities are spending on compensation will help us
understand what percent of Medicaid payments is also needed for non-
compensation costs, which we understand includes many essential
activities.
Comment: A few commenters expressed concerns that residents would
not find the data helpful in making decisions about their long-term
care and that beneficiaries and residents can already get valuable
information about nursing facilities from Nursing Home Compare.
Response: We disagree that beneficiaries would not find the data
helpful and note that some commenters expressed the contrary view that
these data can help beneficiaries advocate for high-quality care. While
we agree that Nursing Home Compare provides beneficiaries with useful
information about nursing facilities, Nursing Home Compare does not
include data on how much facilities spend on compensation to direct
care workers and support staff.\82\ We believe that facility-level data
on the percent of Medicaid payments spent on direct care worker and
support staff compensation will be a useful complement to the facility-
level quality data in Nursing Home Compare and help make available more
comprehensive information on nursing facilities for beneficiaries and
other members of the public.
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\82\ To view what information is available on Nursing Home
Compare, visit the Nursing Home Compare website at: https://www.medicare.gov/care-compare/?redirect=true&providerType=NursingHome.
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Comment: One commenter requested that this requirement be made a
Condition of Participation for nursing facilities to encourage
compliance and to allow the information to be included in Nursing Home
Compare.
Response: We decline to make the reporting requirement a Condition
of Participation at this time. We note that the provision being
finalized at Sec. 442.43 is a requirement that must be followed by
States and does not directly impose requirements on providers. We
believe it is important to first develop the reporting process and
acclimate States and providers to this requirement before considering
making it a Condition of Participation for providers, although we may
consider proposing to do so at a later time.
Comment: A few commenters noted that the proposed requirement could
help assess the extent to which facilities with a large Medicaid
population have challenges achieving compliance with the minimum
staffing standards finalized in section II. of this final rule.
Response: We agree that facility-level data reported by States
could help
[[Page 40917]]
identify facilities that are outliers in terms of allocating Medicaid
payments for compensation for direct care workers and support staff,
which could be relevant when examining understaffing or staff turnover
at certain facilities. We also note that our intention with the
reporting requirement at Sec. 442.43 is to align with a similar
reporting requirement focused on the percent of Medicaid payments for
certain home and community-based services (HCBS) spent on compensation
for direct care workers finalized in the Ensuring Access to Medicaid
Services final rule published elsewhere in this Federal Register. These
aligned requirements will provide a more consistent picture of
compensation to the direct care workforce providing services to
individuals receiving Medicaid-covered LTSS across settings.
Comment: One commenter asked that ICFs/IID be exempted from the
minimum staffing standards.
Response: We clarify that while the provision at Sec. 442.43 being
finalized in this section (section III. of this final rule) applies to
ICFs/IID, the minimum staffing standards being finalized in section II.
of this final rule do not apply to ICFs/IID.
B. Definition of Compensation
At Sec. 442.43(a)(1), we proposed to define compensation to
include salary, wages, and other remuneration, as those terms are
defined by the Fair Labor Standards Act (FLSA) and implementing
regulations (29 U.S.C. 201 et seq., 29 CFR parts 531 and 778), and
benefits (such as health and dental benefits, sick leave, and tuition
reimbursement). In addition, we proposed to define compensation to
include the employer share of payroll taxes for direct care workers and
support staff delivering Medicaid-covered nursing facility and ICF/IID
services (which, while not necessarily paid directly to the workers, is
paid on their behalf). We considered whether to include training or
other costs in our proposed definition of compensation. However, we
believed that a definition that more directly addresses the financial
benefits to workers would better measure the portion of the payment for
services that went to direct care workers and support staff, as it is
unclear that the cost of training and other workforce activities is an
appropriate way to quantify the benefit of those activities for
workers. We were also concerned that requesting providers to quantify
and include costs of non-financial benefits in their reporting would
prove burdensome and could introduce a lack of uniformity in
determining and reporting related costs. We requested comment on our
proposed definition of compensation, particularly whether the
definition of compensation should include other specific financial and
non-financial forms of compensation for the workers included in the
proposed provisions.
We received comments on our proposal. The following is a summary of
these comments and our responses.
Comment: Several commenters supported our definition of
compensation.
Response: We thank the commenters for their support.
Comment: One commenter suggested that we align the definition with
items normally reported on Internal Revenue Service (IRS) form W-2.
Response: We decline to make modifications to the proposed
definition of compensation based on this comment. We believe the
proposed definition encompasses the relevant compensation items that
would be captured on a W-2 form, including the employee's salary,
wages, other remuneration, benefits, and information about payroll
taxes.
Comment: One commenter suggested we add differential pay and
incentives to the definition of compensation.
Response: We are not certain what type of ``incentives'' the
commenter was referring to. Our definition of compensation as proposed
at Sec. 442.43(a)(1) includes salary, wages, and other remuneration as
defined by the FLSA and its regulations. The Department of Labor has
advised that shift differential pay and nondiscretionary bonuses in
health care settings are included within the definition of salary,
wages, and other remuneration under the FLSA.\83\ Non-discretionary
bonuses \84\ include those that are announced to employees to encourage
them to work more steadily, rapidly or efficiently, and bonuses
designed to encourage employees to remain with a facility.\85\
Generally, we intended for the definition at Sec. 442.43(a)(1) to
include most types of payments made directly to direct care workers or
support staff as salary, wages, and remuneration; we will provide
technical assistance as needed for questions regarding specific types
of payments.
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\83\ Refer to U.S. Department of Labor, Fact Sheet #54--The
Health Care Industry and Calculating Overtime Pay. https://www.dol.gov/agencies/whd/fact-sheets/54-healthcare-overtime.
\84\ The Department of Labor has advised that few bonuses are
discretionary under the FLSA. Id.
\85\ See regulations 29 CFR 778.200 and 778.208 for more
information.
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Comment: One commenter, while expressing support for the proposed
definition of compensation, noted the importance of including medical,
dental, and vision benefits, and retirement plans. A few commenters
suggested we add paid leave and vacation time to the definition of
compensation.
Response: We believe that all the items identified by these
commenters--medical, dental and vision benefits, retirement, and paid
time off--are either explicitly included in the proposed definition or
would be reasonably considered part of benefits for the purpose of
compensation.
In its glossary, the Bureau of Labor Statistics (BLS) defines
compensation as ``employer costs for wages, salaries, and employee
benefits,'' and notes that the National Compensation Survey includes
the following categories in employee benefits: insurance (life
insurance, health benefits, short-term disability, and long-term
disability insurance); paid leave (vacations, holidays, and sick
leave); and retirement (defined benefit and defined contribution
plans).\86\ We believe the items suggested by the commenters align with
our intent and are reflected by a common understanding of ``benefits''
as exemplified in the BLS glossary.
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\86\ See BLS ``Glossary'' at https://www.bls.gov/bls/glossary.htm.
---------------------------------------------------------------------------
We are finalizing the definition of ``benefits'' at Sec.
442.43(a)(1)(ii) with several modifications that we believe will help
clarify what is included in the definition, will better align the
definition with what is referenced in the BLS glossary, and will align
this definition with a definition of compensation in a similar
compensation reporting requirement finalized at Sec. 441.311(e) as
part of the Ensuring Access to Medicaid Services final rule published
elsewhere in this Federal Register. The purpose of aligning these
requirements is to provide a more consistent picture of investment in
the direct care workforce providing Medicaid-covered LTSS across
settings.
We are retaining ``health and dental benefits'' but also adding to
the list ``life and disability insurance'' to reflect the examples of
insurance included in the BLS glossary. (We are using ``disability
insurance'' to refer to short- or long-term disability insurance.) We
note that the proposed definition at Sec. 441.43(a)(1)(ii) already
included health insurance, which we believe can be regarded as the same
as medical benefits. The proposed definition also already included
dental benefits. While we decline to specify vision benefits in this
definition, which
[[Page 40918]]
were not included in the proposal and is not part of the BLS glossary
definition as a separate item from ``health benefits,'' we note that
the list of benefits provided in Sec. 442.43(a)(1)(ii) is not
exhaustive, and that vision benefits, when offered by an employer,
would reasonably be considered as part of compensation.
We are also changing ``sick leave'' to the broader term ``paid
leave,'' as this should be understood to cover any time for which the
employee is paid, whether it be for sick leave, holidays, vacations,
and so forth. We are also adding retirement, which we believe is also a
useful blanket term for different types of retirement plans or
contributions on the employee's behalf.
Thus, Sec. 442.43(a)(1)(ii) as finalized in this final rule
specifies that compensation includes benefits, such as health and
dental benefits, life and disability insurance, paid leave, retirement,
and tuition reimbursement.
Comment: A few commenters, while not clearly requesting that these
benefits be added to the definition of compensation, noted a number of
benefits that employers may offer that may be difficult to quantify if
they were to be included in reporting. These benefits included:
recruitment and retention activities, gym fees, pet insurance, employee
wellness programs, childcare support, nutrition programs, and
assistance for staff experiencing financial shortfalls.
One commenter believed that including additional benefits in the
definition of compensation would undermine the purpose of the
requirement, which the commenter believed should focus on direct
payments to workers.
Response: We are not making additional modifications to the
benefits definition listed at Sec. 442.43(a)(1)(ii) beyond what we
described in the prior response. When proposing that benefits be
included in the definition of compensation, we intentionally included
the phrase ``such as'' when describing benefits to indicate that the
example of benefits provided in the definition is not exhaustive. We
did not attempt to list all possible benefits in the regulatory
definition, as we run the risk of creating a definition that is too
narrow.
However, we note that some of the items listed previously, such as
employee wellness programs, which make available non-financial
assistance to all employees (rather than being a specific financial
benefit for the employee) would qualify as administrative expenses.\87\
We plan to provide technical assistance to States to help ensure that
States understand what are considered administrative expenses versus
compensation expenses.
---------------------------------------------------------------------------
\87\ See 29 CFR 778.224(b) (describing various workplace perks
which are not considered employee compensation when calculating
overtime pay under the FLSA, such as the cost to an employer that
provides gym memberships, wellness programs, or nutrition programs).
---------------------------------------------------------------------------
Comment: A few commenters noted specific support for including the
employer share of payroll taxes in the compensation definition, as this
is also an important component of the full compensation cost. One
commenter suggested that the definition should include worker's
compensation taxes.
Response: It is our intention to include employers' payroll tax
contributions for worker's compensation (as well as other payments
required by the Federal Insurance Compensation Act) under Sec.
442.43(a)(1)(iii) (and thus as part of the definition of compensation).
While not necessarily paid directly to the workers, these expenses are
paid on their behalf. We also note, for instance, that per the BLS, the
National Compensation Survey calls payroll taxes for worker's
compensation ``legally mandated employee benefits'' and includes them
as part of the definition of ``employee benefits'' for the purposes of
determining compensation.\88\ We decline to make changes in this final
rule based on these comments, but we plan to provide technical
assistance to States on how to help ensure that providers are including
payroll tax contributions for worker's compensation, as well as
contributions for other payroll taxes such as unemployment insurance,
when reporting on compensation to workers.
---------------------------------------------------------------------------
\88\ See BLS ``Glossary'' at https://www.bls.gov/bls/glossary.htm.
---------------------------------------------------------------------------
Comment: A few commenters suggested that we add training costs to
the definition of compensation, and a few commenters expressed specific
concerns that the cost of specialized training for ICF/IID staff was
not included in the definition of compensation. Commenters noted that
training is a critical element of providing care.
In contrast, a commenter noted that attempting to disclose and
quantify non-financial compensation forms would make reporting
confusing and cumbersome and could lead to variations in reporting
among States that would undermine the goal of uniform reporting.
Another commenter agreed that we should not include training costs in
the definition of compensation; the commenter noted that nursing
facilities are generally required to pay the costs for training
required for certification of nurse aides but may then be reimbursed
for the costs through a variety of payment methods or State grants. The
commenter also noted that some facilities may choose to offer
additional training as part of a collective bargaining agreement or to
help reduce worker turnover, but did not believe the related costs
should be considered part of the compensation package for workers.
A commenter asked that we add mileage reimbursement to cover the
costs to deliver services in various locations.
Response: We clarify that the time direct care workers spend in
training would already be accounted for in the definition of
compensation. We agree with commenters that training is critical to the
quality of services, and that some facilities, due to the needs of the
residents, may require specialized training. We do not want to
encourage providers to reduce training to cut administrative costs. We
also agree that training costs may be difficult to standardize and are
further complicated by the fact that some facilities may receive
funding for training of some staff from sources other than their
Medicaid payments.
We remain reluctant, upon considering comments, to treat all
training costs as ``compensation'' to the direct care worker or support
staff. Trainings are often required as part of the job and may vary
depending on the services or the needs of the beneficiaries they serve.
We are concerned that including training costs in the definition of
compensation could mean that direct care workers with higher training
requirements would see more of their ``compensation'' going to training
expenses, which could cause them to be regarded as more highly
compensated while receiving lower take-home pay than colleagues with
fewer training requirements.
Rather than include training costs in the definition of
``compensation,'' we are creating a new Sec. 442.43(a)(4) for the
purposes of the reporting requirement in Sec. 442.43 to define
``excluded costs.'' Excluded costs are those that are not included in
the calculation of the percentage of Medicaid payments that is spent on
compensation for direct care workers and support staff. We are
specifying at Sec. 442.43(a)(4)(i) that required training costs (such
as costs for qualified trainers and training materials) reasonably
associated with Medicaid-covered nursing facility or ICF/IID services
are excluded from the calculation of the percent of Medicaid
[[Page 40919]]
payments to providers that is spent on compensation for direct care
workers and support staff. This means that, unless providers receive
payment for trainings from sources other than their Medicaid payments
for nursing facility or ICF/IID services, providers could deduct the
total eligible training expenses for direct care workers and support
staff reasonably associated with delivering Medicaid-covered nursing
facility or ICF/IID services from the provider's total Medicaid
payments before the compensation percentage is determined. We note that
in facilities that also serve residents whose services are covered by
non-Medicaid payment sources, we expect that the facility would
calculate the excluded costs by estimating the percent of total
eligible training expenses reasonably associated with providing
Medicaid-covered nursing facility or ICF/IID services, based on the
percent of the facility's residents whose care is primarily paid for by
Medicaid.
Similarly, we do not agree that mileage reimbursement or travel
should be considered compensation to direct care workers and support
staff. Since the reporting provision at Sec. 442.43 pertains to
facility-based services, we do not believe that travel expenses for
direct care workers and support staff are necessarily high for a
significant portion of facilities. However, we also acknowledge that
there are reasons why facilities may need to require staff to travel as
part of their duties, particularly in rural or smaller facilities or
some ICFs/IID, which might require staff to transport beneficiaries to
activities and appointments, assist beneficiaries in the community, or
travel between facilities that are operated by the same provider. In
these cases, the travel would not be for the direct care worker or
support staff's personal benefit.\89\ We also agree that travel costs
will vary significantly by facility, depending on the facility size,
staff makeup, nature of the services provided, and the beneficiaries
served. We are concerned that including travel in the definition of
compensation could mean that direct care workers or support staff with
higher travel demands would see more of their compensation going to
travel, which could cause them to be regarded as more highly
compensated while receiving lower take-home pay than colleagues with
lower travel demands.
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\89\ See 29 U.S.C. 207(e)(2) (permitting employers to exclude
``reasonable payments for traveling expenses'' when determining an
employee's regular rate of pay under the FLSA); see also 29 CFR
778.217 (same).
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To preserve beneficiary access to services (and access to the
community for facility residents) and avoid burden or disparate impact
on beneficiaries, direct care workers, support staff, and providers in
rural or underserved areas, we are excluding travel costs reasonably
associated with providing Medicaid-covered nursing facility or ICF/IID
services in this final rule from the calculation of the percent of
Medicaid payments for nursing facility or ICF/IID services going to
compensation for direct care workers and support staff. This means that
providers could deduct the total eligible travel costs for direct care
workers and support staff reasonably associated with delivering
Medicaid-covered nursing facility or ICF/IID services from the
provider's total Medicaid payments before the compensation percentage
is determined. We note that in facilities that also serve residents
whose services are covered by non-Medicaid payment sources, we expect
that the facility would calculate the excluded costs by estimating the
percent of total eligible travel expenses reasonably associated with
providing Medicaid-covered nursing facility or ICF/IID services, based
on the percent of the facility's residents whose care is primarily paid
for by Medicaid.
To reflect the exclusion of travel costs from the payment
calculation, we are adding a new Sec. 442.43(a)(4)(ii) that specifies
that travel costs for direct care workers and support staff (such as
mileage reimbursements and public transportation subsidies) are
considered an excluded cost for the purposes of the calculation at
Sec. 442.43(c).
We note that the finalization of excluded costs for training and
travel at Sec. 442.43(a)(4) aligns with the definition of excluded
costs finalized at Sec. 441.311(e)(1)(iii) as part of the Ensuring
Access to Medicaid Services published elsewhere in this Federal
Register. This definition also excludes training and travel costs from
the calculation of the percentage of Medicaid payments for certain HCBS
being spent on compensation for direct care workers. We reiterate that
we believe alignment between these reporting provisions in Sec. Sec.
442.311(e) and 442.43 is important to provide a more consistent picture
of investment in the direct care workforce providing Medicaid-covered
LTSS across settings.
Comment: While not necessarily asking that we account for personal
protective equipment (PPE) in the reporting requirement, many
commenters wrote about the importance of PPE in facility-based
settings. Many of these commenters were self-identified direct care
workers or other staff working in facilities and shared frustrations
with not having sufficient PPE during (and even after) the COVID-19
Public Health Emergency (PHE). A few of these commenters also noted
specific concerns regarding administrative staff's access to PPE; one
commenter, who self-identified as a receptionist in a nursing facility,
shared an experience of being asked to interact with residents during
the COVID-19 PHE without being provided PPE.
Response: We believe that these comments serve as an important
reminder, especially given the recent experience with the COVID-19 PHE,
that PPE should be treated as essential to supporting direct care
workers and support staff's ability to perform their duties on par with
training and travel. Providing direct care workers and support staff
with adequate PPE is critical for the health and safety of both the
workers and the beneficiaries they serve. We also do not believe that
direct care workers or support staff should have to pay for PPE out-of-
pocket or that it should be considered part of their compensation. We
also note that due to the enclosed environment of many facilities,
providing PPE to all staff is critical for maintaining health and
safety for all staff and beneficiaries.
Similar to our approach with travel and training, we are also
finalizing a new Sec. 442.43(a)(4)(iii) to exclude costs for PPE
reasonably associated with providing Medicaid-covered nursing facility
or ICF/IID services. We note that this is consistent with an exclusion
of PPE costs finalized at Sec. 441.311(e)(1)(iii) in the Ensuring
Access to Medicaid Services final rule published elsewhere in this
Federal Register.
We are excluding PPE costs for facility staff reasonably associated
with providing Medicaid-covered nursing facility or ICF/IID services in
this final rule from the calculation of the percent of Medicaid
payments for nursing facility or ICF/IID services going to compensation
for direct care workers and support staff. This would mean that
providers could deduct the total eligible PPE expenses for their
facilities reasonably associated with delivering Medicaid-covered
nursing facility or ICF/IID services from the provider's total Medicaid
payments before the compensation percentage is determined. We note that
in facilities that also serve residents whose services are covered by
non-Medicaid payment sources, we expect that the facility would
calculate the excluded costs by estimating the percent of total
eligible PPE expenses reasonably associated with providing Medicaid-
covered nursing facility or ICF/IID services, based on the percent of
the facility's residents whose care is primarily paid for by Medicaid.
[[Page 40920]]
To reflect the exclusion of PPE costs from the payment calculation,
we are adding a new Sec. 442.43(a)(4)(iii) that specifies that a
provider's PPE costs reasonably associated with providing Medicaid-
covered nursing facility and ICF/IID services may be considered
excluded costs for the purposes of the calculation at Sec. 442.43(c).
After consideration of the comments, we are finalizing Sec.
442.43(a)(1)(i) and (iii) as proposed. We are finalizing Sec.
442.43(a)(1)(ii) with modifications to specify that compensation
includes benefits, such as health and dental benefits, life and
disability insurance, paid leave, retirement, and tuition
reimbursement.
We are also finalizing a new definition at Sec. 442.43(a)(4) to
define excluded costs, which are costs reasonably associated with
delivering Medicaid-covered nursing facility or ICF/IID services that
are not included in the calculation of the percentage of Medicaid
payments that is spent on compensation for direct care workers and
support staff. Such costs are limited to: costs of required trainings
for direct care workers and support staff (such as costs for qualified
trainers and training materials); travel costs for direct care workers
and support staff (such as mileage reimbursement or public
transportation subsidies); and costs of personal protective equipment
for facility staff.
C. Definitions of Direct Care Workers and Support Staff
At Sec. 442.43(a)(2), for the purposes of the proposed reporting
provision at Sec. 442.43(b), we proposed to define direct care workers
to include: nurses (registered nurses, licensed practical nurses, nurse
practitioners, or clinical nurse specialists) who provide nursing
services to Medicaid-eligible individuals receiving nursing facility
and ICF/IID services; certified nurse aides who provide such services
under the supervision of one of the foregoing nurse provider types;
licensed physical therapists, occupational therapists, speech-language
pathologists, and respiratory therapists; certified physical therapy
assistants, occupational therapy assistants, speech-language therapy
assistants, and respiratory therapy assistants or technicians; social
workers; personal care aides; medication assistants, aides, and
technicians; feeding assistants; activities staff; and other
individuals who are paid to provide clinical services, behavioral
supports, active treatment (as defined at Sec. 483.440), or address
activities of daily living (such as those described in Sec. 483.24(b),
which includes activities related to mobility, personal hygiene,
eating, elimination, and communication), for individuals receiving
Medicaid-covered nursing facility and ICF/IID services. Our proposed
definition of direct care worker was intended to broadly define such
workers to ensure that the definition appropriately captured the
diversity of roles and titles that direct care workers may have. For
the reasons discussed in the proposed rule (88 FR 61385), our proposed
definition of direct care worker differs from the definition of direct
care staff in LTC facilities at Sec. 483.70(q)(1), which was
established for the PBJ reporting program at Sec. 483.70(q). We
requested comment on whether we should adopt the definition of direct
care staff at Sec. 483.70(q)(1), instead of our proposed definition of
direct care worker.
We requested feedback on our proposed definition of direct care
worker at Sec. 442.43(a)(2). We specifically requested whether there
are categories of staff we should add to, or remove from, our proposed
definition. We requested feedback from the public as to whether our
proposed definition appropriately included workers who are instrumental
in helping residents achieve the level of health or develop skills
needed to transition from facility settings back into the community,
assess residents for readiness for transition, and support in discharge
planning, or if these workers should be included as a separate
category.
At Sec. 442.43(a)(3), for the purposes of the proposed reporting
requirement at Sec. 442.43(b), we proposed to define support staff to
include individuals who are not direct care workers and who maintain
the physical environment of the care facility or support other services
(such as cooking or housekeeping) for residents. Similar to our
proposed definition of direct care worker, our proposed definition of
support staff was intended to broadly define such workers to ensure
that the definition appropriately captures the diversity of roles and
titles that such workers may have. Specifically, we proposed to define
support staff to include: housekeepers; janitors and environmental
services workers; groundskeepers; food service and dietary workers;
drivers responsible for transporting residents; and any other
individuals who are not direct care workers and who maintain the
physical environment of the care facility or support other services for
individuals receiving Medicaid-covered nursing facility and ICF/IID
services. We requested comment on whether there are other specific
types of workers, such as security guards, who should be included in
the definition. We also solicited comment on whether any of the types
of workers listed in this proposal should be excluded from the
definition of support staff. We also requested comment, generally, on
our proposal to include support staff in this proposed reporting
requirement.
We also proposed in both Sec. 442.43(a)(2) and (3) to define
direct care workers and support staff, respectively, to include
individuals employed by or contracted or subcontracted with a Medicaid
provider or State or local government agency. This proposal was in
recognition of the varied ownership and employment relationships that
can exist in Medicaid institutional services. For instance, differences
may include: institutions that are privately owned and operated or
facilities owned and operated by a local or State government;
facilities that are partially or wholly staffed through a third-party
staffing organization through a contractual arrangement; or staff who
are employed directly or as independent contractors. Additionally, a
facility may contract with, for example, a third-party transportation
company to provide transportation services to residents. We solicited
comment on whether this component of our proposed definition adequately
captures the universe of potential employment or contractual
relationships between institutional facilities and relevant direct care
workers and support staff.
We received comments on our proposal. The following is a summary of
these comments and our responses.
Comment: A few commenters expressed support for the definition of
direct care worker. A commenter noted that the definition appears to
capture most, if not all, positions that provide direct care to
residents. Another commenter supported the definition because they
believed it includes only the staff who provide direct care services to
residents.
A commenter responded to our comment solicitation on using the
definition of direct care staff at Sec. 483.70(q)(1); this commenter
did not support using the definition of direct care staff at Sec.
483.70(q)(1) because it did not align with the duties and
responsibilities of staff in ICFs/IID.
Response: We thank commenters for their support. With the exception
of a few modifications noted later in this section, we are finalizing
the definition of direct care worker that we proposed at Sec.
442.43(a)(2).
Comment: A commenter noted that the examples of workers included in
the direct care worker definition include
[[Page 40921]]
many workers who complement or supplement shortfalls in registered
nurses and other long-term care staffing and contribute to the quality
of care. This commenter supported the broad definition of direct care
worker proposed at Sec. 442.43(a)(2), and believed that for
consistency throughout this final rule, these staff should count
towards any minimum staffing requirement (which is discussed in section
II. of this final rule). Another commenter requested that we clarify
that the direct care worker definition at Sec. 443.42(a)(2) is broader
than that used in the proposed minimum staffing standard and therefore
is for the purposes of this section only. A commenter expressed concern
that this definition will lead some facilities to treat the workers
included in this direct care worker definition interchangeably, such as
asking skilled clinicians to perform unskilled services such as meal
delivery or personal hygiene services. The commenter also raised a
concern that some facilities might inappropriately substitute one type
of clinical specialty for another if a broad direct care worker
definition fails to recognize the unique clinical skills of each member
of the multidisciplinary care team.
Response: We clarify that the definition proposed at Sec.
442.43(a)(2) is only for the purposes of the reporting requirement
being finalized in Sec. 442.43 and is not to be used for the purposes
of the minimum staffing requirements being finalized in section II. of
this final rule. We also note that the intent of this requirement is to
list the different staff whose compensation must be included in the
numerator of the reported percent of Medicaid payments being spent on
compensation. The intent is not to define a single category of
interchangeable workers.
Comment: A commenter requested that we clarify that the definition
excludes nurses who perform primarily administrative tasks. A commenter
supported excluding administrative staff who are primarily in a
supervisory position (such as a director of nursing) or primarily
completing paperwork (such as nurses assigned to complete Minimum Data
Set paperwork) and stated that the definition should include only the
services of hands[hyphen]on, direct care workers.
A commenter suggested we include physicians and physician
assistants in the definition of direct care workers, given the
importance of these staff to nursing facilities' patient care. A
commenter stated that while they are not recommending we add physicians
and physician assistants to the definition, they would like to know the
purpose of the data to understand why these roles were excluded. A few
commenters also suggested we add pharmacists.
Response: Consistent with the proposed rule, our definition is
intended to exclude staff who perform administrative tasks (such as
overseeing business operations) and whose primary duty is to provide
non-clinical supervision to other staff.
Upon further consideration, we are modifying our definition of
direct care worker at Sec. 442.43(a)(2) to clarify that the definition
includes nurses or other staff providing clinical supervision. This
modification is in recognition of the importance of clinical
supervision in facility settings and to align with a similar
modification made to the direct care worker definition finalized at
Sec. 441.311(e) in the Ensuring Access to Medicaid Services final rule
published elsewhere in this Federal Register. (As noted in our proposed
rule at 88 FR 61385, we believe it is important to keep the definitions
of direct care workers in this rule and the Ensuring Access to Medicaid
services rule as closely aligned as possible.) We clarify that nurses
or other staff who provide clinical oversight and training for direct
care staff (as allowed by their professional license), participate in
activities directly related to provision of beneficiary care (such as
completing or reviewing documentation of care), are qualified to
provide services directly to beneficiaries, and periodically interact
with beneficiaries should be included in the definition of direct care
worker. In some instances, this may also pertain to physicians,
physician assistants, or pharmacists that meet the elements of this
description of nurses or other staff who provide clinical supervision.
We decline to add physicians, physician assistants, or pharmacists as
additional categories in the definition of direct care worker because
we want to keep the definition focused on the staff that commonly
provide most of the direct care in facilities.
We reiterate that our intention is to align the reporting
requirement at Sec. 442.43 with similar reporting requirements
finalized in the Ensuring Access to Medicaid Services final rule
published elsewhere in this Federal Register, which focuses on
compensation rates for direct care workers providing Medicaid HCBS. The
purpose of these aligned requirements is to provide a more consistent
picture of the investment in the direct care workforce providing
Medicaid-covered LTSS across settings.
Comment: One commenter requested clarification on whether Certified
Medication Aides were included in the definition of direct care worker,
and suggested we add this job duty if it was not included.
Response: We believe that a Certified Medication Aide would likely
fall under the definition of direct care worker as proposed at Sec.
442.43(a)(2)(vii), which specifies a medication assistant, aide, or
technician. We note that job titles at facilities may vary, and States
should apply their best judgment when determining if certain titles fit
within the definition of direct care worker at Sec. 442.43(a)(2). We
will also supply technical assistance as needed.
Comment: A number of commenters representing ICFs/IID were
concerned that Qualified Intellectual Disability Professionals (QIDPs)
were not included in the definition. Commenters noted that, in addition
to being a required position in ICFs/IID, QIDPs have specialized
training and are responsible for care coordination and assessing,
monitoring, documenting, and ensuring the provision of quality care to
ICF/IID residents.
Response: We acknowledge that ICFs/IID are required at Sec.
483.430(a) to be staffed by a QIDP, who may be doctors, nurses, or
other professionals described at Sec. 483.430 with specialized
training in care for people with intellectual and developmental
disabilities. It is our understanding that QIDPs' roles may vary in
different States or even among different facilities within a State. For
instance, some QIDPs may actively participate in direct care while
others may take on more of an administrative or care coordination role.
We note that the proposed definition of direct care worker included a
broad category proposed at Sec. 442.43(a)(2)(x) (but being finalized
at Sec. 442.43(a)(2)(xi), as discussed below), which specifies any
other individual who is paid to provide clinical services, behavioral
supports, active treatment (as defined at Sec. 483.440), or address
activities of daily living (such as those described in Sec. 483.24(b))
for Medicaid-eligible individuals receiving Medicaid services under
this part. We defer to States to determine if the QIDPs working in
their ICFs/IID meet this definition or other elements of the definition
of direct care worker at Sec. 442.43(a)(2), and we have not added this
position explicitly to the definition.
Comment: A number of commenters representing ICFs/IID expressed
concern that Direct Support Professionals (DSPs) were not included in
the definition of direct care worker. Commenters noted that in many
States, ``Direct Support
[[Page 40922]]
Professional'' is a typical professional designation and a critical
position in ICFs/IID; DSPs are often the staff that provide direct,
daily support to ICF/IID residents. Commenters asked that we add DSPs
to the definition of direct care worker at Sec. 442.43(a)(2).
A few commenters noted that it may cause confusion to exclude DSPs
from the definition of direct care worker in Sec. 442.43(a)(2) when
DSPs were included in the definition of direct care worker in the
Ensuring Access to Medicaid Services rule (as the definition was
proposed at 88 FR 27984). One commenter recommended we include DSPs in
the definition at Sec. 442.43(a)(2) to align the definitions in the
two rules and acknowledge the role that DSPs play in providing LTSS
care across settings.
Response: We are persuaded both by the characterization of DSPs as
direct care workers and the concern that omitting DSPs in the
definition of direct care worker at Sec. 442.43(a)(2) would misalign
the definition with the definition of direct care worker finalized in
the Ensuring Access to Medicaid Services final rule published elsewhere
in this Federal Register. We reiterate, as noted in prior responses,
that our intention is to align the reporting requirement at Sec.
442.43 with similar reporting requirements finalized in the Ensuring
Access to Medicaid Services final rule published elsewhere in this
Federal Register, which focuses on compensation rates for direct care
workers providing HCBS. The purpose of these aligned requirements is to
provide a more consistent picture of the direct care workforce for
individuals receiving Medicaid-covered LTSS across settings.
After consideration of the commenters received, we are modifying
the definition of direct care worker at Sec. 442.43(a)(2) to include
DSPs.
Comment: A few commenters responded to our comment solicitation
regarding whether we should add to the definition staff who can be
instrumental in helping residents achieve the level of health or
develop skills needed to transition from nursing facilities back into
the community, assess residents for readiness for transition, and
support in discharge planning. A commenter agreed that these staff
duties should be added to the definition. Another commenter, however,
stated that these staff should only be added to the definition if they
are in a separate category from direct care workers. The commenter
noted that these workers are providing important services to improve
the residents' health, safety, and autonomy, but the job duties vary
much more broadly than in the case of the direct care workers
identified in Sec. 442.43(a)(2).
Response: Based on the comments received, we are not modifying the
definition of direct care staff at Sec. 442.43(a)(2) to include a
specific category of staff who provide transition supports. Although a
few commenters were supportive of their inclusion as a separate
category, we were not persuaded by the balance of the comments that
staff who provide these supports are not already reflected in the
different categories of workers contained in the definition. We also
want to ensure that the definition focuses on workers who provide
direct care, rather than what in some cases could be primarily
administrative support.
We note that the proposed definition of direct care worker included
a broad category at Sec. 442.43(a)(2)(x) (being finalized at Sec.
442.43(a)(2)(xi)), which specifies any other individual who is paid to
provide clinical services, behavioral supports, active treatment (as
defined at Sec. 483.440), or address activities of daily living (such
as those described in Sec. 483.24(b)) for Medicaid-eligible
individuals receiving Medicaid services under this part. We defer to
States to determine if staff who provide discharge planning or other
transition supports in facilities meet this definition or other
elements of the definition of direct care worker at Sec. 442.43(a)(2).
Comment: A number of commenters requested that we divide the
definition of direct care worker into two categories: a direct care
worker category and a category referred to as either ``ancillary
staff'' or ``licensed staff.''
One group of commenters advocated restricting the definition of
direct care workers to nursing staff and recommended defining direct
care workers as registered nurses, licensed practical nurses, and
certified nursing assistants--a list they believed would align with the
staff addressed by the minimum staffing requirements proposed in
section II. of this final rule. Some of these commenters suggested this
alignment would aid in interested parties' ability to draw inferences
from the data regarding the impact of the minimum staffing requirements
proposed in section II. of this final rule. A few commenters suggested
retaining nurse practitioners and clinical nurse specialists, in
addition to registered nurses, licensed practical nurses, and certified
nursing assistants. A commenter suggested that restricting the
definition of direct care workers to nursing staff would aid in data
consistency among States because, while every facility employs nursing
staff, there may be more variation among States and facilities in the
types of the other workers; the commenter provided the example that
some States recognize feeding and medication assistants, and others do
not. Commenters who recommended limiting the definition of direct care
worker to nursing staff suggested that a second category, ``ancillary
staff,'' should be defined to include the other staff listed in Sec.
442.43(a)(2) such as physical therapists, occupational therapists,
speech-language pathologists, and therapy aides; some of these
commenters also suggested adding physicians, physician assistants, and
pharmacists to this category.
Other commenters advocated for limiting the definition of direct
care workers to certified nursing assistants and, where relevant,
personal care aides and home health aides. One of these commenters also
suggested retaining feeding assistants in the definition. These
commenters suggested that these roles are responsible for providing
most of the direct care to nursing facility and ICF/IID residents,
particularly in regard to activities of daily living. A few of these
commenters suggested that these roles would align more closely with the
definition of direct care worker in the Ensuring Access to Medicaid
Services rule (as the definition was proposed at 88 FR 27984) and the
way that the term direct care worker has been used by other Federal
agencies such as the Administration for Community Living. Commenters
also believed this would allow for the transparent reporting of
compensation paid to workers who typically receive lower pay.
Commenters expressed concerns that if compensation to these workers
were reported together with the compensation paid to typically higher-
paid workers, this would obscure the ``unique contributions and
challenges of these roles.'' A few commenters suggested other staff
listed in Sec. 442.43(a)(2) should be included in an ``ancillary
staff'' category. A commenter suggested that, rather than an ancillary
staff category, we create a ``licensed staff'' category that includes
all of the staff that typically require licensure.
Response: We decline to create a new category of ancillary or
licensed staff apart from the direct care worker category. We note that
there was not consensus among commenters that the definition of direct
care workers should be limited to staff with nursing duties, staff
without professional licenses, or staff who typically receive lower
pay. We believe the category of direct care
[[Page 40923]]
workers as proposed at Sec. 442.43(a)(2) is appropriately broad to
capture a spectrum of workers who provide direct care to residents.
Limiting the definition of direct care workers to nursing staff
does not align with our intention to examine expenditures for all staff
who provide direct care to residents receiving Medicaid institutional
LTSS. We also note that the reporting requirement we proposed (and are
finalizing in this final rule) includes ICFs/IID, which do not
necessarily focus on nursing services to the same extent as nursing
facilities do. We agree with the commenter who noted that there might
be variation in the types of non-nursing staff in nursing facilities,
but we note that there is variety in the roles of all staff across
facilities. Attempting to parse the direct care workforce into
additional categories for reporting purposes not only adds
administrative burden, it also could undermine our goal of creating
simple, nationally comparable baseline data.
We continue to believe it is appropriate to include licensed
professionals in the definition of direct care worker. There is a
shortage of nurses and other clinicians delivering LTSS, and we believe
it is important to support these members of the LTSS workforce
especially, as they also work directly with residents. We disagree with
commenters who stated that restricting the definition of direct care
workers to certified nursing assistants, personal care aides, and
feeding assistants would align the definition with the definition of
direct care workers in the Ensuring Access to Medicaid Services final
rule published elsewhere in this Federal Register. We note that the
definition finalized at Sec. 441.311(e), like the definition at Sec.
442.43(a)(2), includes both licensed clinicians and other unlicensed
direct care workers.
We also decline to add home health aides to the definition of
direct care worker at Sec. 442.43(a)(2). We agree with commenters that
home health aides are part of the definition of direct care workers
finalized in the reporting requirement at Sec. 441.311(e) in the
Ensuring Access to Medicaid Service final rule published elsewhere in
this Federal Register. However, while we intend to align these
definitions as much as possible to provide a complete picture of
compensation for all direct care workers providing Medicaid LTSS, we
also believe it is important to adapt each definition to their
respective settings. We do not believe home health aides typically
provide services in institutional facilities. In a situation where care
might be provided by someone described as a home health aide, we
believe this role would be addressed by the category proposed at Sec.
442.43(a)(2)(ix) (being finalized at Sec. 442.43(a)(2)(xi)), which
specifies inclusion of any other individual who is paid to provide
clinical services, behavioral supports, active treatment (as defined at
Sec. 483.440), or address activities of daily living (such as those
described in Sec. 483.24(b)) for Medicaid-eligible individuals
receiving Medicaid services under this part.
Comment: A number of commenters supported our definition of support
staff and agreed that the definition was broad enough to include the
workers responsible for supporting residents' health, safety, quality
of care, and, in ICFs/IID, active treatment. A few commenters expressed
specific support for including compensation for support staff in the
reporting requirement.
Response: We thank commenters for their support.
Comment: A few commenters responded positively to our comment
solicitation regarding the inclusion of security guards in the list of
support staff, agreeing that these workers should be added to the list
in Sec. 442.43(a)(3). One commenter noted that some ICFs/IID that
serve residents with aggressive behavior may be required to have
security guards as part of their licensure.
Commenters suggested that we include the following workers in the
definition of support staff: administrative staff (including billing
staff); receptionists; information technology (IT) staff; central
supply staff who purchase and distribute food, supplies, and materials
for providers who maintain multiple facilities; staff who provide
laundry or linen service; and transportation drivers.
A commenter noted that every employee who works in a facility
contributes, in some way, to the care of those residents. The commenter
stated that all persons contributing to the care of the residents,
whether directly employed by the facility or through contract with an
outside entity, should be included as either direct care or support
staff.
Response: Based on feedback from commenters, we will modify the
definition of support staff at Sec. 442.43(a)(3) to include security
guards. We believe that security guards provide important services that
support the safety of staff and beneficiaries in facilities, but that
these services may not intuitively fall under any of the other
categories already included in the definition of support staff. Thus,
we believe it is important to explicitly include security guards as a
category of worker included in the definition finalized at Sec.
442.43(a)(3).
We decline to make other modifications to the definition based on
comments. We believe laundry services are already included in the
definition of support staff at Sec. 442.43(a)(3)(i) as part of
housekeeping duties, and thus, we decline to add that as a separate
category in the definition. Transportation drivers are addressed in the
proposed definition (and the definition we are finalizing) at Sec.
442.43(a)(3)(v).
We believe the other specific positions described by commenters are
administrative roles and would not be included in our definition of
support staff at Sec. 442.43(a)(3). We agree that all staff, including
those who provide administrative support, are critical to the
functioning of a facility. We also believe, as has been discussed at
length in the proposed rule at 88 FR 61381 through 61383, that direct
care worker understaffing in facilities is well-documented and chronic
and poses a risk to the quality of care. As a result, we have made
addressing compensation for institutional direct care workers and
support staff a particular focus of this requirement.
Comment: A number of commenters, particularly those representing
ICFs/IID, expressed concern that some staff may have duties that
encompass components of both the direct care worker definition in Sec.
442.43(a)(2) and the support staff definition in Sec. 442.43(a)(3),
such as DSPs who also provide services such as cooking, housekeeping,
or maintaining the physical environment of an ICF/IID. Commenters
expressed concern that this overlap in duties would create inconsistent
reporting, confusion, or additional administrative burden if facilities
had to report portions of the same staff's compensation in two
categories. A commenter suggested we resolve this overlap by allowing
the full compensation for these DSPs to be included in the direct care
worker cost category.
One commenter also noted that the definitions of direct care worker
and support staff do not address universal care workers who provide
both nursing services and support services.
Response: We believe that for reporting purposes, compensation for
staff that act as direct care workers and support staff should be
reported according to the staff's primary job duties. We do not expect
the calculations of the percent of payments for nursing facility and
ICF/IID services that are spent on compensation for the
[[Page 40924]]
direct care and support staff workforce to allocate compensation across
direct care and support staff categories based on the proportion of
time an individual worker performs specific tasks.
Comment: A few commenters specifically noted support for the
inclusion of third-party contracted and subcontracted staff in the
definitions of direct care workers and support staff at Sec.
442.43(a)(2) and (3). A commenter noted that if we were to exclude
contracted staff from the reporting requirement, we would be missing
critical information on staff compensation expenditures and create an
incentive for facilities to rely even more heavily on contracted staff
to avoid having to report on payments to these staff.
A few commenters suggested that we expand the definitions of direct
care workers and support staff as they relate to the inclusion of
third-party contracted staff. These commenters noted that nursing
facility ownership structures have become extremely complicated and
that organizations can engage with facilities in a variety of ways
including complicated related-party transactions. These commenters
recommended we expand the direct care worker and support staff
definitions to include all individuals or entities providing services
under contract, subcontract, or other related agreement, in whole or in
part, with an organization or provider that provides goods or services
to the facility through contract, subcontract, or other related
agreement, in-whole or in-part. This includes direct care workers,
ancillary services staff, and support staff providing goods or services
to the facility under a contract, subcontract, or other related
agreement, in-whole or in-part, and regardless of whether the
individual receives a W-2 from either the contracted organization or
the facility.
A few commenters observed that many facilities use contract labor
(in which the contract price includes wages, benefits, and
administrative costs) and all-inclusive contracts (in which a facility
pays a monthly rate for labor, supplies, and other items). A commenter
suggested that we modify the definition of compensation or benefits to
clarify that the definition excludes any payment that is not directly
received by the worker or excludes any payment that is retained by a
related party or contracted agency. A commenter requested we issue
guidance requiring facilities to report only the portion of contracted
costs that are actually related to compensation; this commenter
suggested that if it is not possible for facilities to report only the
portion of contracts related to compensation, that we require States to
discount costs for payments to agencies and contractors by an amount
that represents the average percentage of these payments that is not
related to actual worker compensation, based on a State examination of
a sample of such payments.
A number of commenters representing ICFs/IID noted that ICFs/IID
often contract for many services. These commenters stated that
obtaining compensation information from third-party organizations may
be burdensome, might require obtaining confidential or proprietary
information, discourage third party entities from contracting with
ICFs/IID, create administrative burden and complexity, and open ICFs/
IID to penalties if they are unable to track down this information.
Some of these commenters specified concern about the impact of the
requirement on ICFs/IID that contract with HCBS providers to allow the
ICF/IID residents to attend community day programs. Relatedly, a few
commenters noted that ICFs/IID may contract with other community
organizations to provide ICF/IID residents access to, for example, YMCA
programs, bowling alleys, or other recreational activities. These
commenters were concerned that these community providers or
organizations would not accept the ICF/IID residents if they were
required to report on compensation to their staff. A few commenters
expressed concern that States would reduce ICF/IID services or that
ICFs/IID would stop offering community engagement activities or feel
penalized for offering community engagement if presented with increased
reporting burden.
To address the potential complexity of reporting on third-party
contracted staff, a commenter suggested we allow the full cost of
contracts to be reported separately, based on the general type of
service being delivered, which the commenter believed aligns with most
States' current ICF/IID cost reporting. Similarly, another commenter
noted that in the commenter's State, Medicaid cost reports separate
agency (contract) spending from compensation paid to employed workers
and suggested that we adopt the same approach.
Response: We decline to modify the definitions of direct care
worker or support staff in response to these comments. We agree that it
is important to report on the compensation paid to contracted staff,
not the value of the entire contract to a third-party. As noted by
commenters, the value of the entire contract may include administrative
or other costs that would fall outside the definition of compensation
and inflate the reported percentage of compensation. We also agree with
commenters that excluding contracted staff would not provide accurate
insight into allocation of Medicaid payments to the workers providing
direct care and support to residents. We believe that the language in
the definitions of direct care worker and support staff at Sec.
442.43(a)(2) and (3) already indicates that it is compensation to
workers employed as part of a contract, not the value of an entire
contract for services, that should be included in the reporting.
We are concerned that some of the alternate language proposed by
commenters might alter the definition in ways beyond what we intended
for the definitions of direct care worker and support staff. For
instance, we are uncertain what commenters meant in their proposed
alternative definition by individuals who provide services ``in-whole
or in-part.'' If this is a reference to workers who provide services on
less than a full-time basis, then we believe these individuals are
already included in our definitions of direct care worker and support
staff at Sec. 442.43(a)(2) and (3), as these definitions do not
specify whether a worker is employed on a part- or full-time basis. We
are concerned that the language suggested by commenters could be
interpreted as including compensation to individuals who, while
supporting an organization that provides contracted services to
residents, do not themselves provide services specifically for the
residents.
We also note that the definitions of direct care workers and
support staff that we proposed (and are finalizing, with modifications,
in this final rule) are meant to capture employees and contracted staff
who provide services, not goods, to facility residents. We would not,
for instance, expect the compensation of staff working for a wholesale
grocer that supplies food to a facility to be included in the reported
compensation.
We acknowledge that some facilities may rely on a number of
contracts to provide services for residents (including contracts with
HCBS providers or other entities in the community). We do not believe
the compensation of all workers employed by a contractor or
subcontractor will be relevant to the reporting requirement. Given the
variety of contracting models we will provide subregulatory guidance to
States on how to approach reporting on compensation to contracted and
subcontracted staff.
Comment: One commenter noted that HCBS providers providing
contracted services for ICF/IID residents may face additional,
duplicative, or conflicting
[[Page 40925]]
reporting requirements, due to finalization of compensation-related
reporting requirements in the Ensuring Access to Medicaid Services
rule.
Response: As finalized at Sec. 441.311(e) in the Ensuring Access
to Medicaid Services rule published elsewhere in this Federal Register,
HCBS providers that provide homemaker, home health aide, personal care,
or habilitation services will be required to report on the percent of
Medicaid payments going to direct care worker compensation. We will
provide subregulatory guidance on how States should approach reporting
by HCBS providers who fall within the reporting requirement at Sec.
441.311(e) and who also provide contracted services to nursing facility
or ICF/IID residents to minimize reporting burden on these providers.
After consideration of the comments received, we are finalizing the
definition of direct care worker at Sec. 442.43(a)(2) with a
modification to add DSPs and to include nurses or other staff who
provide clinical supervision. We are finalizing the definition of
support staff at Sec. 442.43(a)(3) with a modification to add security
guards.
D. Reporting Requirement
Based on our authority at sections 1902(a)(6) and 1902(a)(30)(A) of
the Act with respect to FFS, and sections 1902(a)(4) and 1932(c) of the
Act with respect to managed care plans (that is, MCOs and PIHPs), we
proposed new reporting requirements at Sec. 442.43(b) to require
States to report annually, by delivery system (if applicable) and by
facility, on the percent of Medicaid payments for nursing facility and
ICF/IID services that is spent on compensation for direct care workers
and on compensation for support staff, at the time and in the form and
manner specified by CMS. As noted in our responses previously, and as
discussed in the proposed rule at 88 FR 61386, we believe that this
information will help identify national trends and also help States
identify facilities that appear to be outliers in terms of the amount
of Medicaid payment going to direct care worker and support staff
compensation. We believe that contextualizing direct care worker and
support staff compensation information in this manner will help States
understand whether current payment rates for nursing facility and ICF/
IID services are consistent with economy, efficiency, and quality, and
sufficient to ensure meaningful beneficiary access.
We proposed that the reporting to CMS would be for all Medicaid
payments made to nursing facility and ICF/IID providers receiving
payment under FFS or managed care delivery systems. As discussed in 88
FR 61387, for FFS payments, this would include base payments and
supplemental payments for nursing facility and ICF/IID services. For
FFS base and supplemental payments, we are relying on the definition of
supplemental payments provided in section 1903(bb)(2) of the Act, which
defines supplemental payments as Medicaid payments to a provider that
are in addition to any base payment made to providers under the State
plan or under demonstration authority. As discussed in guidance
released in 2021, we interpret base payment (as used in the definition
of supplemental payment in section 1903(bb)(2)(A) of the Act) to refer
to a standard payment to the provider on a per-claim basis for services
rendered to a Medicaid beneficiary in an FFS environment. The base
payment can include: (1) any payment adjustments; (2) any add-ons; and/
or (3) any other additional payments received by the provider that can
be attributed to services identifiable as having been provided to an
individual beneficiary, including those that are made to account for a
higher level of care, complexity, or intensity of services provided to
an individual beneficiary.\90\ We solicited comment on whether, for FFS
payments, we should instead require reporting on only the percent of
base payments spent on such compensation, or separate reporting on the
percent of base payments and on the percent of aggregated payments
(base plus supplemental payments) spent on such compensation.
---------------------------------------------------------------------------
\90\ Centers for Medicare & Medicaid Services, State Medicaid
Directors Letter # 21-006, New Supplemental Payment Reporting and
Medicaid Disproportionate Share Hospital Requirements under the
Consolidated Appropriations Act, 2021, December 10, 2021. https://www.medicaid.gov/federal-policy-guidance/downloads/smd21006.pdf.
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We also proposed at Sec. 442.43(b) that, for States that contract
with MCOs and/or PIHPs to cover services delivered by nursing
facilities and/or ICFs/IID, States report on the percent of payments
made by the MCO or PIHP to nursing facilities and ICFs/IID that is
spent for compensation to direct care workers and support staff. For
these managed care plans, payments would include the managed care
plan's contractually negotiated rate, State directed payments defined
in Sec. 438.6(a), pass-through payments defined in Sec. 438.6(a) for
nursing facilities, and any other payments from the MCO or PIHP to the
nursing facility or ICF/IID.
We also proposed to require that, if States deliver the relevant
services through both FFS and managed care, the States report
separately for each delivery system.
We proposed that the reporting be performed annually. We solicited
comment on this timeframe. We requested comment on whether annual
reporting is reasonable, or if we should reduce the frequency of
reporting to every other year or every 3 years.
We received comments on our proposal. The following is a summary of
these comments and our responses.
Comment: A number of commenters recommended that instead of, or in
addition to, our proposed reporting requirements we implement the
Medicaid transparency recommendations of the March 2023 Medicaid and
CHIP Payment and Access Commission (MACPAC).\91\ The MACPAC
recommendations call for State Medicaid programs to make nursing
facility payment and cost data publicly available for each nursing
facility in a standard format that includes: (1) FFS base Medicaid
payments, FFS supplemental payments, managed care State directed
payments, and beneficiary contributions to their share of costs; (2)
the amount of provider contributions to the non-Federal share of
Medicaid payments to calculate net payments to providers; (3) expenses
for wages and benefits separately for nursing, ancillary, and support
services as well as administrative staff and other employees; (4)
expenses for direct care including staffing costs for nursing,
ancillary, and support services; (5) expenses for administration,
property, and profits; and (6) detailed expenses for related-party
transactions, real estate ownership, and disallowed costs. These
commenters believed that unless Medicaid programs are required to
provide more comprehensive data on rates and payments as well as
expenses, we will not be able to draw any useful conclusions from the
proposed transparency requirement.
---------------------------------------------------------------------------
\91\ Medicaid and CHIP Advisory Committee, March 2023 Report to
Congress on Medicaid and CHIP. See specifically ``Chapter 2:
Principles for Assessing Medicaid Nursing Facility Payment Policy.''
Available at: https://www.macpac.gov/publication/principles-for-assessing-medicaid-nursing-facility-payment-policies/.
---------------------------------------------------------------------------
Response: We defer to States as to whether they wish to make this
information available to the public. While we agree that this level of
granular detail would generate a great deal of potentially useful
information, we strongly disagree with commenters that reporting on
higher-level aggregated data would not yield useful information. We
note that the reporting requirement at Sec. 442.43 will provide data
on the
[[Page 40926]]
percent of Medicaid payments (including FFS base payments, FFS
supplemental payments, managed care State directed payments, and
beneficiary contributions) that is being spent on compensation for
direct care and support staff as well as other payments that may not
all be captured in the MACPAC recommendations, such as other payments
in managed care delivery systems, including contractually negotiated
rates, pass-through payments, and any other payments from the MCO or
PIHP in managed care delivery systems. As noted in a prior response, we
decline to subdivide direct care workers into nursing and ancillary
staff categories. We believe that this reporting requirement will
result in nationally comparable baseline data that will allow for
inferences regarding investment in the direct care and support staff
workforce. While we will take the other recommendations under
consideration, at this time we do not intend to increase administrative
burden on States and providers by requiring Federal reporting on
additional categories that fall outside of our focus on the direct care
and support staff workforce.
We also point commenters to the Disclosures of Ownership and
Additional Disclosable Parties Information for Skilled Nursing
Facilities and Nursing Facilities final rule (88 FR 80141) published on
November 17, 2023, which implements portions of section 6101 of the
Patient Protection and Affordable Care Act requiring the disclosure of
certain ownership, managerial, and other information regarding Medicare
skilled nursing facilities (SNFs) and Medicaid nursing facilities. Some
of the commenters' additional concerns regarding facility ownership
structures may be addressed by the requirements in that rule.
Comment: A few commenters noted support for requiring reporting of
both FFS base and supplemental payments, pointing out that supplemental
payments contribute to total revenue in the same way that base rates do
and should not be treated differently or excluded.
One commenter noted that in the commenter's State, facilities do
not receive FFS supplemental payments but rather receive varying FFS
base payments depending on the acuity of the residents. This commenter
stated that requiring reporting on total payments would result in
better comparisons across States. A few commenters stated that FFS
payment base rates do not fluctuate drastically year-to-year without
changes to the State plan, and thus believed that including both FFS
base and supplemental payments would not be burdensome and would
provide a comprehensive picture of nursing facilities' expenditures on
compensation. A few commenters also noted support for requiring
reporting on all payments from an MCO or PIHP, including State directed
payments made by these managed care plans.
One commenter, on the other hand, supported reporting on FFS base
and supplemental payments separately. The commenter stated that
separate reporting would illustrate the separate roles of the FFS base
payment and supplemental payments, which in turn would be important to
understanding how Medicaid payments support nursing facility staffing
and ensure supplemental payments were also being used to support worker
compensation.
Response: We are finalizing the substantive language at Sec.
442.43(b) specifically requiring reporting on Medicaid FFS base and
supplemental payments as proposed. (We note that we are finalizing
Sec. 442.43(b) with some non-substantive technical modifications to
improve the overall clarity of the requirement.) We agree with
commenters that requiring reporting on both Medicaid FFS base and
supplemental payments (added together) strikes the right balance of
providing a complete picture of Medicaid FFS payments while minimizing
administrative burden to the greatest extent possible.
Upon further consideration, we are finalizing Sec. 442.43(b) with
a modification to remove the specification that reporting is ``by
delivery system.'' We continue to expect that services delivered under
a managed care delivery system will be part of the reporting
requirement. We do not, however, intend to require that States report
data to us separately by delivery system. We note that commenters did
not express specific support for this separate reporting, and we are
concerned that this separate reporting may increase administrative
burden in States that provide services through both FFS and managed
care delivery systems. We also note that the compensation reporting
requirement (reporting on the percent of Medicaid payments made to
direct care workers providing Medicaid HCBS) finalized at Sec.
441.311(e) in the Ensuring Access to Medicaid Services final rule
published elsewhere in this Federal Register does not require separate
reporting by delivery system. We intend to align these reporting
requirements to the greatest extent possible.
Comment: A commenter requested that CMS clarify what payments are
required to be reported in accordance with Sec. 442.43(b) for
providers that are network providers for an MCO or PIHP.
Response: We point readers to the language being finalized at Sec.
442.43(b), which states that the Medicaid payments that must be
included in the State reporting include the contractually negotiated
rate, State directed payments, pass-through payments, and any other
payments from the MCO or PIHP for nursing facility and ICF/IID
providers.
Comment: Several commenters supported requiring reporting at least
annually for both FFS and managed care delivery systems, which
commenters believed would aid in tracking trends in worker compensation
across facilities and States. One commenter noted that an annual
frequency appropriately balances the need for actionable information
with administrative burden. One commenter noted that timely data on
Medicaid is critical as rates can be too low and not updated
frequently, which can have a negative impact on providers and on
beneficiaries' access to care. One commenter noted that frequent public
reporting can be a critical element to promoting policy change and
improving health care quality.
A few commenters, however, while stating that they found the annual
reporting frequency to be reasonable, noted that States have many
reporting burdens and asked that we remain receptive to alternative
frequencies proposed by States. One of these commenters noted that some
States may need more time than others to come into compliance with the
requirement and suggested that we allow for some flexibility to
accommodate different States' circumstances or allow States to
determine their own timeframe.
A few commenters, citing concerns about the burden associated with
collecting and analyzing reimbursement streams and worker compensation
data, as well as competing reporting priorities and limited staff
resources, suggested we require reporting every 3 years. One of these
commenters noted that some of the wage and benefit information that
would be required is not readily available to some Medicaid agencies,
not all cost reports have this information, and providers do not
typically report this type of information to their State Medicaid
agencies.
Response: We are finalizing the annual reporting frequency as
proposed. We agree with commenters that receiving timely reporting data
is critical, and we are concerned that if too much time elapses between
each
[[Page 40927]]
reporting period, the reports, when released, will become quickly out
of date. Additionally, as discussed further in this section, we are
finalizing at Sec. 442.43(f) an applicability date that will give
States 4 years to comply with this reporting requirement. Once States
that do not currently collect these data update their systems
appropriately, we believe the reporting will become routine and the
initial administrative burden will lessen. We will provide technical
assistance to States as needed as they develop their reporting
capacity.
After consideration of the comments received, we are finalizing a
modification to Sec. 442.43(b) to strike ``by delivery system'' from
the reporting requirement.
We are also finalizing Sec. 442.43(b) with minor modifications to
clarify that the Medicaid payments used in the calculation required at
Sec. 442.43(b) do not include excluded costs (which are being
finalized at Sec. 442.43(a)(4), as discussed in section III.B. of this
final rule.) Additionally, we are finalizing the regulatory text at
Sec. 442.43(b) with technical modifications to aid with clarity and
correct minor grammatical errors.
E. Exclusion of Certain Payments
We proposed at Sec. 442.43(b)(1) to require reporting for
payments, including FFS base and FFS supplemental payments, and
payments from managed care plans, to nursing facilities and ICFs/IID
for Medicaid-covered services, with the exception of services offered
in swing bed hospitals (as described in Sec. 440.40(a)(1)(ii)(B)). We
proposed to exclude swing bed hospitals, as we do not want to pose a
burden on rural hospitals that provide LTSS to a comparatively small
number of beneficiaries. We solicited comment on this proposal.
For reasons described in the proposed rule at 88 FR 61387, at Sec.
442.43(b)(2), we proposed that States exclude from the reporting
payments for which Medicaid is not the primary payer, meaning that
States would exclude payments for services for residents who are dually
eligible for Medicare and Medicaid and whose skilled nursing care
services are paid for by Medicare. We solicited feedback from the
public on whether including cost-sharing payments for services that
were primarily paid for by Medicare would provide a more accurate
picture of the relationship between Medicaid payments and worker
compensation. We also requested comment on whether excluding cost-
sharing payments would increase or decrease burden on States and
providers.
For reasons discussed at 88 FR 61387, we did not propose to exclude
beneficiary contributions to their care when Medicaid is the primary
payer of the services.
We considered whether to allow States, at their option, to exclude,
from their reporting, payments to providers that have low Medicaid
revenues or serve a small number of Medicaid beneficiaries, based on
Medicaid revenues for the service, the number of Medicaid beneficiaries
receiving the service, or other Medicaid utilization data including but
not limited to Medicaid bed days. We considered this option as a way to
reduce State, managed care plan, and provider data collection and
reporting burden based on the experience of States that have
implemented similar reporting requirements. However, we were concerned
that such an option could discourage providers from serving Medicaid
beneficiaries or increasing the number of Medicaid beneficiaries
served. We requested comment on whether we should allow States the
option to exclude, from their reporting to us, payments to providers
that have low Medicaid revenues or serve a small number of Medicaid
beneficiaries, based on Medicaid revenues for the service, the number
of Medicaid beneficiaries receiving the service, or other Medicaid
utilization data including but not limited to Medicaid bed days. We
also requested comment on whether we should establish a specific limit
on such an exclusion and, if so, the specific limit we should
establish, such as to limit the exclusion to providers in the lowest
5th, 10th, 15th, or 20th percentile of providers in terms of Medicaid
revenues for the service, number of Medicaid beneficiaries served, or
other Medicaid utilization data (including but not limited to Medicaid
bed days).
We received comments on our proposal. The following is a summary of
these comments and our responses.
Comment: A few commenters supported our decision to exclude
payments to swing beds from the reporting in the proposed rule. These
commenters noted that swing bed hospitals utilize different accounting
systems for their expenditures and thus should not be included in
nursing facility reporting. One commenter agreed that swing bed
hospitals should be excluded to avoid placing a burden on rural
facilities that serve a relatively low number of nursing facility
residents.
Response: We thank commenters for their support. We are finalizing
the exclusion of payments to swing bed hospitals at Sec. 442.43(b)(1)
as proposed.
Comment: A few commenters agreed with excluding payments for
services in which Medicaid is not the primary payor. One commenter
specifically agreed that this exclusion would reduce burden on States
and providers and that payments from other payors would not provide
meaningful insight into the allocation of Medicaid payments for
compensation of workers. However, a number of commenters recommended we
require that reporting be for the percent of all revenue spent on
compensation (and not limited just to the percent of Medicaid
payments). Commenters believed this would further aid in transparency
and oversight of how facilities allocate their revenue. A few
commenters also stated that requiring only reporting on payments for
which Medicaid is the primary payer actually increases burden and
recommended that reporting be on the percentage of all revenues that
are spent on compensation. Commenters noted that nursing facilities
receive revenue from many sources apart from Medicaid payments and pay
direct care workers and support staff compensation from a pool
comprised of all revenue sources.
A number of commenters recommended we expand this requirement to
include Medicare as well as Medicaid payments. A few of these
commenters disagreed with our statement that including Medicare
payments was out of scope. These commenters stated that not only is
including Medicare payments within our authority, not doing so ignores
our legal obligations under the Nursing Home Reform Act (specifically,
42 U.S.C. 1396r(f)(1)) to protect residents and make sure that public
funding is effectively and efficiently used, as well as our obligations
under section 6104 of the Affordable Care Act (requiring that skilled
nursing facilities receiving Medicare payments disclose wages paid to
direct care staff on their cost reports).
Response: We decline to modify the requirements to require
reporting for all revenue or for Medicare revenue, as this would be out
of scope for the proposal. We believe that States and facilities are
aware of the amount of Medicaid payments received by each facility. We
understand that all revenue received by a facility ultimately gets
pooled together for the purposes of paying worker compensation and that
facilities often serve a mix of residents with different payers and
different needs. As discussed further in this section, we will provide
a methodology that will allow States to make a reasonable calculation
of what percent of a facility's direct care and support staff
[[Page 40928]]
workforce was paid from Medicaid revenues.
As discussed in the proposed rule at 88 FR 61383, we proposed these
reporting requirements in part using our authority under section
1902(a)(30)(A) of the Act, which requires State Medicaid programs to
ensure that payments to providers are consistent with efficiency,
economy, and quality of care and are sufficient to enlist enough
providers so that care and services are available to beneficiaries at
least to the extent as to the general population in the same geographic
area. We believe section 1902(a)(30)(A) of the Act speaks specifically
to Medicaid payments, not to all payments received by providers. We
will take under advisement commenters' recommendations regarding
reporting on all revenue but cannot pursue such a requirement in this
rule.
We also reiterate that our intention is to align the reporting
requirement at Sec. 442.43 with similar reporting requirements
finalized in the Ensuring Access to Medicaid Services final rule
published elsewhere in this Federal Register, which focuses on the
percent of Medicaid payments for certain HCBS going to compensation for
the direct care workforce. The purpose of these aligned requirements is
to provide a consistent picture of the percent of Medicaid payments
going to compensation for the direct care workforce for Medicaid-
covered LTSS across settings. Not only would adding reporting on
Medicare payments be out of scope for this reporting requirement, we
believe that doing so would obscure data on the allocation of Medicaid
payments. We thank commenters for their feedback and will consider a
reporting requirement for Medicare payments for future rulemaking.
Comment: A few commenters agreed that beneficiary contributions,
such as co-pays (to the extent they exist) should also be included in
the revenue side of the calculation. A few commenters noted that
because beneficiary contributions can fluctuate, they can have an
impact on the resources available for compensation to staff and thus
should be included in the reporting.
One commenter asked for clarification on which beneficiary
contributions should be included. The commenter noted that in the
proposed rule we mentioned deductibles and coinsurance but did not
mention resident contributions to the cost of their care as a result of
Medicaid rules for post-eligibility treatment of income (PETI). The
commenter expressed concern that we had not listed all types of
beneficiary contributions in the regulatory text.
Response: We thank commenters for their support. We clarify that
beneficiary contributions, including contributions to the cost of their
care as a result of Medicaid rules for PETI, are part of Medicaid total
payments for the purposes of this reporting requirement. We decline to
specify beneficiary contributions in the regulatory text because we
believe these are already understood to be part of total Medicaid
payments. As noted in the proposed rule at 88 FR 61387, Sec. 447.15
defines payment-in-full as ``the amounts paid by the agency plus any
deductible, coinsurance or copayment required by the [State] plan to be
paid by the individual.'' For managed care delivery systems, although
the term ``payment-in-full'' as defined at Sec. 447.15 is not
applicable, for consistency between FFS and managed care delivery
systems, any deductible, coinsurance, or copayment required to be paid
by the individual would similarly be included in the total amount used
to determine the percent of Medicaid payments for nursing facility and
ICF/IID services under managed care delivery systems that is spent on
compensation for direct care workers and support staff.
Comment: Most commenters who responded to our comment solicitation
on small provider exemptions did not support exempting small providers
from the reporting requirement because a complete picture of Medicaid
spending on compensation in all nursing facilities and ICFs/IID is
critically needed. A few commenters agreed with the reasons we cited in
the proposed rule, that excluding certain providers would create the
potential for disincentivizing providers to accept Medicaid patients. A
commenter noted that ICFs/IID in particular tend to be small, so
excluding small providers could mean a significant number (if not all)
of some States' ICF/IID providers might be exempted.
One commenter did support excluding certain providers, noting that
providers with a low number of nursing beds or extremely high or
extremely low Medicaid utilization will typically not have operating
costs that reflect the average for the industry and as such may change
the State reported averages. The commenter proposed that providers
should be excluded from reporting information required by this rule if
they have any of the following characteristics during the reporting
period: (1) Medicaid utilization based on census of 30 percent or less;
(2) Medicaid utilization based on census of 80 percent or more; or (3)
40 or fewer Medicaid-certified beds. One commenter recommended
excluding payments for out-of-State single-case agreements, due to the
difficulties collecting data from out-of-State facilities.
Response: We thank commenters for their feedback regarding concerns
related to offering exemptions from the reporting requirement. We agree
that offering exemptions would create disincentives to serve Medicaid
beneficiaries and would not provide a comprehensive picture of
compensation for the direct care and support staff workforce. We also
note that we are especially interested in the expenditures of
facilities serving a high percentage of Medicaid beneficiaries and,
thus, would not wish to exclude them from this reporting. We will not
modify this reporting requirement to add exemptions for providers. We
will provide technical assistance as needed to address payments for
Medicaid beneficiaries in out-of-State facilities.
Comment: One commenter expressed concern about the impact of dually
eligible individuals on cost calculations, as Medicaid does not bear
the cost of therapy provision or prescription drugs for dually eligible
nursing facility residents.
Response: As discussed in the proposed rule at 88 FR 61386, States
would exclude Medicaid payments to cover only cost-sharing payments on
behalf of residents who are dually eligible for Medicare and Medicaid
and whose skilled nursing care services are paid for by Medicare. We
will provide technical assistance on how to calculate costs for dually
eligible residents whose nursing facility care is being covered by
Medicaid, but some aspects of their care are paid for by Medicare.
After consideration of the comments received, we are finalizing the
requirements at Sec. 442.43(b)(1) and (2) as proposed.
We are also finalizing at new Sec. 442.43(b)(3) an exemption of
data from Indian Health Service (IHS) and Tribal health programs
subject to 25 U.S.C. 1641. During our finalization of the Ensuring
Access to Medicaid Services final rule published elsewhere in this
Federal Register, it came to our attention that requirements
potentially affecting IHS or Tribal provider expenditures would
conflict with 25 U.S.C. 1641, governing how IHS and Tribal health
programs may use Medicare and Medicaid funds, and other applicable laws
providing for Tribal self-governance and self-determination. Although
we are not finalizing a requirement in this final rule to require that
providers spend a
[[Page 40929]]
minimum percentage of their Medicaid payments for nursing facility or
ICF/IID services on direct care worker and support staff compensation,
we have left open the possibility that the data collected under Sec.
442.43 could help inform a minimum performance proposal in future
rulemaking. Given the conflict between such a minimum performance
requirement and the statutory requirements at 25 U.S.C. 1641, we will
be unable to use data from IHS and Tribal health programs to inform
future policy making related to direct care worker and support staff
compensation. We believe that requiring States to report on data from
IHS and Tribal programs would create unnecessary burden and (given
their current allocation requirements) might skew the other data States
would collect and report to CMS. Further, we note that finalizing an
exemption for IHS and Tribal programs at Sec. 442.43(b)(3) aligns with
an exemption in the compensation reporting requirement finalized at
Sec. 442.311(e)(2) in the Ensuring Access to Medicaid Services final
rule published elsewhere in this Federal Register.
F. Report Contents and Methodology
At Sec. 442.43(c)(1), we proposed that the reporting must provide
information necessary to identify, at the facility level, the percent
of Medicaid payments spent on compensation to: direct care workers at
each nursing facility, support staff at each nursing facility, direct
care workers at each ICF/IID, and support staff at each ICF/IID. We
anticipate that States and providers would be able to obtain the
information needed to calculate the percent of Medicaid payments made
to direct care workers and support staff using data used in rate
setting, internal wage information, cost reports, and resident census
numbers (which would indicate the number of days residents had
Medicaid-covered stays during the year). However, we solicited comment
on our proposal that information be reported at the facility level,
particularly on any concerns about potential burden on providers and
States.
We proposed to include in the reporting requirement the percentages
of Medicaid payments to each nursing facility or ICF/IID that are going
towards compensation to direct care workers and support staff at those
facilities. However, we stated in the proposed rule at 88 FR 61387 that
we would consider adding to the proposed reporting requirements
additional elements for States to report on median hourly compensation
for direct care workers and median hourly compensation for support
staff, in addition to the percent of Medicaid payments going to overall
compensation for these workers. We requested that commenters also
provide feedback on whether the reporting should be on salary/wages or
on total compensation (salary/wages and other remuneration, including
employer expenditures for benefits and payroll taxes) and whether the
information should be calculated for all direct care workers and for
all support staff or further broken down by the staff categories
specified in our proposal at Sec. 442.43(a)(2) and (3).
At Sec. 442.43(c)(2), we proposed that States must report the
information required at Sec. 442.43(c)(1) (the percent of Medicaid
payment going to compensation for direct care workers and support staff
and, if added to the provision, median hourly wages) according to a
methodology that we provide. For reasons discussed in the proposed rule
at 88 FR 61387 through 61388, we did not propose to codify a specific
reporting methodology. In the proposed rule at 88 FR 61387, we stated
that if this proposal is finalized, we would specify a reporting
methodology as part of the reporting instrument, which would be
submitted separately for formal public comment under the processes set
forth by the Paperwork Reduction Act. We solicited initial suggestions
for an appropriate methodology for identifying the percentage of
Medicaid payment that has gone to direct care worker and support staff
compensation. We also solicited initial suggestions about whether
separate methodologies would be appropriate for FFS base payments and
supplemental payments and if so, suggestions for each. Commenters who
supported adding a requirement to report median hourly wages were also
asked to provide suggestions for a methodology for those calculations.
To support our goal of transparency, we considered adding a
provision requiring that States make publicly available information
about the underlying FFS payment rates themselves for nursing facility
and ICF/IID services. For the reasons discussed in 88 FR 61388, we
considered adding to the proposed reporting provisions a requirement
that, as applicable, States report a single average Statewide FFS per
diem rate (one reported rate for nursing facility services and one
reported rate for ICF/IID services). We also requested comment on
whether the reported average should be the average of only the per diem
FFS base payment rates or the average of the per diem FFS base payment
rates plus FFS supplemental payments.
Finally, as discussed in 88 FR 61388, in consideration of potential
future rulemaking, we requested comment on whether we should require
that a minimum percentage of the payments for Medicaid-covered nursing
facility services and ICF/IID services be spent on compensation for
direct care workers and support staff. We also requested comment on
whether such a requirement would be necessary to ensure that payment
rates and methodologies are economic and efficient and consistent with
meaningful beneficiary access to safe, high-quality care, or otherwise
necessary for the proper and efficient operation of the State plan.
Additionally, we requested suggestions on the specific minimum
percentage of payments for Medicaid-covered nursing facility services
and ICF/IID services that should be required to be spent on
compensation to direct care workers and support staff. If a minimum
percentage was recommended, we requested that commenters provide
separate recommendations for nursing facility services and ICF/IID
services and the rationale for each such minimum percentage that is
recommended. We requested that commenters provide data or evidence to
support such recommendations, which we will review as part of our
consideration of policy and rulemaking options.
We received comments on our proposal. The following is a summary of
these comments and our responses.
Comment: A few commenters expressed support for the requirement
that States collect data at the facility level. A commenter noted
specific support for including both privately- and publicly owned
facilities.
A few commenters noted that facility-level reporting may be
burdensome. One of these commenters asked for clarification as to
whether the reporting will be by provider or by facility; the commenter
noted that some providers operate multiple individual facilities and
that requiring reporting at the facility level rather than the provider
level will increase burden.
Response: As stated in our proposed requirement at Sec. 442.43(c),
the reporting gathered by the State should be at the facility level
(but reported to CMS, for each nursing facility, as a single aggregated
percentage for direct care worker compensation and, separately, a
single aggregated percentage for support staff compensation and, for
each ICF/IID, a single aggregated percentage for direct care worker
compensation and, separately, a single aggregated percentage support
staff compensation). We will provide technical assistance to
[[Page 40930]]
States on how to collect data from providers that operate multiple
facilities to minimize administrative burden.
Comment: Many commenters supported disaggregating the reporting
requirements by job duty or title, rather than reporting a percentage
for direct care workers and a percentage for support staff. Several
commenters also supported requiring reporting on median hourly wages
(again, disaggregated by job duty). These commenters noted that wages
for different types of direct care workers and support staff are wide
ranging, and commenters were concerned that posting broad categorical
percentages or median hourly wages for a range of job classifications
would not provide transparency regarding how the facility is staffed
and how each type of worker is compensated.
Other commenters did not support reporting on median hourly wages.
A commenter, representing a number of State Medicaid agencies, stated
that while some Medicaid agencies agreed that this data would help
evaluate the impact of rate increases on staff wages, others were
strongly opposed to additional reporting due to the increased
administrative burden on States and providers. A commenter noted that
the cost reports in the commenter's State do not currently include
median hourly wages and that having to obtain that information from
facilities would significantly increase burden.
A few commenters believed that if median hourly wage was reported,
it should be reported for total compensation. One of these commenters
observed that facilities might have to make changes to their facility's
human resources or accounting software to accommodate further
disaggregation of wage reporting. The commenter also noted that the
wide variety of salary or wage types and pay systems would make data
disaggregated beyond total compensation difficult to compare among
States and across providers.
A few commenters suggested that this reporting be disaggregated by
the subcategories of compensation listed in the definition of
compensation at Sec. 442.43(a)(1). A few commenters suggested that the
subcategories should be further disaggregated, such as requiring
reporting separately on overtime payments, the cost of paid time off,
and the cost of health benefits.
A few commenters suggested we require disaggregation beyond
compensation subcategory or job duty. A commenter suggested we require
disaggregating median wage by part- and full-time status, as well as by
contracted and employee status, which the commenter believed would
allow policymakers to better understand the relationships between
Medicaid payment, provider employment practices, and quality of care. A
commenter, making a similar suggestion to require separate reporting of
contracted staff, also suggested we require that facilities report
whether they have an ownership interest in the third-party entity
providing the contracted services. A few commenters suggested we
require separate reporting on wages paid to new staff, to ensure
facilities were appropriately investing in increasing staffing levels.
A commenter suggested reporting on whether a facility offers health and
retirement benefits and the percent of workers enrolling in those
benefits. A few commenters also recommended we encourage States to
collect data that would demonstrate racial, gender, and career
advancement disparities.
A few commenters suggested that reporting be disaggregated by rate
component. A commenter explained that due to the large variations
between the Medicaid reimbursement systems used in the States and
territories, reporting by rate component would allow for a variety of
percentage of payment calculations by individual rate component and in
total.
Response: We are finalizing the Federal reporting requirement as
proposed (to require aggregated reporting of direct care worker
compensation and support staff compensation) and without requiring
reporting on median hourly wages.
In previous comment summaries and responses, we discussed concerns
about variations in job titles and duties and are concerned that
requiring payment broken down by job title may make national
comparisons difficult, and significantly increase the reporting burden.
For similar reasons, we decline at this time to require reporting on
median hourly wage. As noted by commenters, there are variations among
State and local wage laws and cost of living that would make meaningful
comparisons of median hourly wages difficult at a national level. We
believe it is important to first establish competency with collecting
and reporting broad baseline data before requiring more granular
reporting, although we recognize there could be value to collecting
more granular data, including on median wages, in the future.
Additionally, upon consideration of the comments, we have
identified no compelling reason to implement a Federal requirement for
disaggregating the data by compensation category. We believe that
employee benefits, in addition to wages, are also integral to the
compensation of direct care workers and support staff. The third
component of compensation--employers' share of payroll taxes--is a
fixed percentage of the employee's wages set by law.
We thank commenters for their thoughtful feedback and suggestions
for additional reporting components or metrics. We note that States
may, at their discretion, require additional disaggregated data that
they feel would be helpful in tracking local trends in workforce
compensation and providing oversight and transparency.
Comment: Many commenters recommended that nursing homes should be
required to detail other expenses, including any payments to related
parties. These commenters believed that this would support greater
financial transparency. One commenter recommended that both Medicare
and Medicaid cost reports be made publicly available to disclose the
total amount of spending on nursing, ancillary, and support services
compared with spending on administration, property, profits, related
party transactions, and disallowances.
One commenter recommended that additional data be collected on
other outcome measures, including staffing levels for direct care
workers and workers who provide indirect care (such as housekeeping or
food services); the number of short- and long-stay residents; payer
distribution of residents; quality measures constructed from the
Minimum Data Set; safety measures constructed from health inspection
data collected from nursing homes during on-site inspection surveys;
medical outcomes from Medicare data, including hospital admissions,
emergency department visits, mortality, hospital readmissions, and
successful community discharge (short stay); and results from surveys
of residents, family, and staff.
Response: We thank commenters for their suggestions but note that
recommendations regarding reporting on expenditures other than
compensation are out of scope for this rule, as are requests that we
create and finalize requirements regarding cost reports. As stated in
prior responses, the purpose of this requirement is not the granular
tracking of all facility expenditures. As discussed at length in the
proposed rule at 88 FR 61831 through 61833, understaffing in facilities
is well-documented and chronic and poses a risk to the quality of care,
and thus we have made addressing compensation for
[[Page 40931]]
institutional direct care workers and support staff a particular focus
of this requirement. We recognize the role of related-party and other
transactions in affecting the overall costs and profits of nursing
facilities, and in turn the amount of funding available for direct care
and administrative staffing; we will examine this issue and its impacts
on quality in the future.
We also note that Nursing Home Compare contains a great deal of
information regarding quality measures for nursing facilities.
Comment: Although they did not necessarily provide recommendations
for a methodology, some commenters expressed concerns about how the
required information will be calculated. These concerns include:
For facilities that accept payments from multiple payers,
identifying the amount of compensation for services provided to
residents with stays covered by Medicaid;
Accounting for variations in beneficiary acuity, which can
impact both the amount of Medicaid payments and the facility resources
allocated to the beneficiaries;
Accounting for third party contracts in which (1) the
contract price includes wages, benefits, and administrative costs, or
(2) all-inclusive contracts (in which a facility pays a monthly rate
for labor, supplies, and other items);
Calculating the percent of Medicaid payments going to
compensation if the Medicaid payment is less than the facility's
standard rate; and
Determining a reporting period (such as provider fiscal
year, State fiscal year, or calendar year) that promotes consistency
without creating administrative burden or confusion for providers.
A few commenters made specific suggestions regarding methodology
and the reporting period. A commenter recommended the percentage be
calculated by determining (a) a per diem salary cost amount
(compensation costs divided by total patient days) and (b) a per diem
revenue amount (Medicaid payments divided by Medicaid days), and
dividing amount (a) by amount (b). The commenter cautioned, however,
that this method will not provide information about whether revenues
are being diverted away from patient care.
A commenter noted that a potential challenge could arise when
accounting for payment adjustments that occur in one year that are paid
in a different year, which could either under-report or over-report the
payments to providers. To address this, the commenter suggested that
States be required to report payments based on actual dates of service,
not the dates payments are made to providers.
A commenter recommended that the reporting period should be the
facility's fiscal year or cost report year, but that changes in the
reporting period should be allowed if the facility changes ownership. A
commenter suggested we allow States to determine the reporting period.
A few commenters suggested we develop a reporting methodology based
on a review of current nursing facility and ICF/IID cost reports or
other State-level reporting practices.
Response: We thank commenters for their feedback, which we will
take into consideration when developing the reporting methodology and
reporting template (including reporting period), that we will be making
available for public comment through the Paperwork Reduction Act notice
and comment process. This will give the public the opportunity to
provide specific feedback and help us align the methodology and
reporting process with existing State practices to the greatest extent
possible.
We received public comment on our solicitation regarding whether we
should require State reporting on per diem Medicaid FFS payment rates
for nursing facilities and ICFs/IID. A few commenters wrote in support
of adding this requirement to the reporting requirement at Sec.
442.43(c). However, we have finalized a requirement at Sec.
447.203(b)(1) in the Ensuring Access to Medicaid Services final rule
published elsewhere in this Federal Register requiring State agencies
to publish all Medicaid FFS fee schedule payment rates on a website
that is accessible to the general public. We are not finalizing a
reporting requirement at Sec. 442.43(c) that would largely duplicate
the reporting requirement at Sec. 447.203(b)(1).
We received responses to our request for comment on whether, as
part of future rulemaking, we should require that a minimum percentage
of the payments for Medicaid-covered nursing facility services and ICF/
IID services be spent on compensation for direct care workers and
support staff. We received comments both in support of and in
opposition to the idea of requiring a minimum threshold. We did not
receive comments providing data supporting a specific minimum
threshold. We thank commenters for their feedback and will take these
comments into consideration in pursuing any future rulemaking on this
issue.
After consideration of the comments received, we are finalizing
Sec. 442.43(c)(1) and (2) as proposed.
G. Website Posting
Based on our authority in sections 1902(a)(6) and 1902(a)(30)(A) of
the Act with respect to FFS and sections 1902(a)(4) and 1932(c) of the
Act with respect to managed care plans, we proposed new requirements to
promote public transparency related to the administration of Medicaid-
covered institutional services. For the reasons discussed in 88 FR
613888 and 61389 we proposed at Sec. 442.43(d) to require States to
operate a website that meets the availability and accessibility
requirements at Sec. 435.905(b) and that provides the results of the
newly proposed reporting requirements in Sec. 442.43(b). We requested
comment on whether the proposed requirements at Sec. 435.905(b) are
adequate to ensure the availability and the accessibility of the
information for people receiving LTSS and other interested parties. We
noted that the accessibility and availability requirements set forth in
Sec. 435.905(b) focus on whether the language used on a website is
accessible to computer users with disabilities or limited English
proficiency.
At Sec. 442.43(d)(1), we proposed to require that the data and
information that States are required to report in Sec. 442.43(b) be
provided on one website, either directly or by linking to relevant
information on the websites of the managed care plan(s) that is
contracted to cover nursing facility or ICF/IID services. We explained
our intent for the States to be ultimately responsible for ensuring
compliance with the proposal, including to ensure through contractual
arrangements with managed care plans, as applicable, that the proposed
requirements are satisfied when required information is provided on
websites maintained by these plans. Proposed Sec. 442.43(d)
contemplates that some States that provide nursing facility or ICF/IID
services through a managed care delivery system may decide to work with
their managed care plans to make the reporting information available on
the managed care plans' websites, rather than replicating the
information directly on the State's website. We requested comment on
whether States should be permitted to link to websites of these managed
care plans and, if so, whether we should limit the number of separate
websites that a State could link to in place of directly reporting the
information on its own website; or whether we should require that all
the required information be posted directly on a website maintained by
the State.
At Sec. 442.43(d)(2), we proposed to require that the website
include clear
[[Page 40932]]
and easy to understand labels on documents and links. At Sec.
442.43(d)(3), we proposed to require that States verify the accurate
function of the website and the timeliness of the information and links
at least quarterly. The intent of Sec. 442.43(d)(3) is to require that
States ensure that the reporting information on their own website is up
to date. We would also expect, if the State is linking to a managed
care plan's website, that the State ensure on at least a quarterly
basis that the links are operational and continue to link to the
information States are required to report in Sec. 442.43(b). We did
not propose to direct that managed care plans must also review their
websites quarterly, but rather we expect that States would develop a
process with their managed care plans to ensure that any reporting
information contained on a managed care plan website is timely and
accurate. If a State obtains information that a managed care plan
website to which the State links as a means of publishing the required
reporting information is not being maintained with timely updates for
ongoing accuracy, we expect that the State would work with the relevant
managed care plan to correct the situation and, if unsuccessful, cease
linking to that managed care plan's website and begin posting the
required reporting information on a State-maintained website. We
requested comment on this proposal, including whether this timeframe
for website review is sufficient or if we should require a shorter
timeframe (monthly) or a longer timeframe (semi-annually or annually).
At Sec. 442.43(d)(4), we proposed to require that States include
prominent language on the website explaining that assistance in
accessing the required information on the website is available at no
cost to the public. We also proposed to require that States include
information on the availability of oral interpretation in all languages
and written translation available in each non-English language, how to
request auxiliary aids and services, and a toll-free and TTY/TDY
telephone number. We requested comment on whether these requirements
would be sufficient to ensure the accessibility of the information for
people receiving nursing facility or ICF/IID services and other
interested parties.
We also proposed at Sec. 442.43(e) that we must report on our
website (Medicaid.gov or a successor website) the information reported
by States to us under Sec. 442.43(b). Specifically, we envision that
we would update our website to provide information reported by each
State on the percent of payments for Medicaid-covered services
delivered by nursing facilities and ICFs/IID that is spent on
compensation to direct care workers and support staff (and, if added to
the provision, information on median hourly wages) which would allow
the information to be compared across States and providers. We also
envisioned using data from State reporting in future iterations of the
CMS Medicaid and CHIP Scorecard.\92\ In the proposed rule at 88 FR
61389, we noted that if, based on public comment, we add a requirement
that States provide information about their payment rates for nursing
facility and ICF/IID services, we would provide this information on our
website as a way of providing easy-to-find context for the other
payment information reported by States. We currently do not intend to
include the information on payment rates in the CMS Medicaid and CHIP
Scorecard.
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\92\ CMS's Medicaid and CHIP Scorecard. Accessed at https://www.medicaid.gov/state-overviews/scorecard/.
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We received public comment on these proposals. The following is a
summary of these comments and our responses.
Comment: A few commenters stated that they supported requiring
States to have only one website with all the data and information
related to reporting requirements. A commenter noted that this makes
accessing data much easier and more accurate than external links to
managed care plans' websites. A commenter requested we also require
that data be in a downloadable format that supports use of the data, to
support analysis by the public, researchers, and other interested
parties.
Response: We decline to make modifications to this requirement. We
agree with commenters that having one website on which the public may
access data is a good practice. However, we have finalized a
requirement at Sec. 441.313(a)(1) in the Ensuring Access to Medicaid
Services final rule published elsewhere in this Federal Register that
gives States flexibility to maintain either a single website or link to
managed care plan websites. To provide parity for both HCBS and
institutional Medicaid services, we are finalizing the substantive
requirement at Sec. 442.43(d) as proposed, allowing States to meet
this requirement by linking to individual MCO or PIHP websites. (We
note that we are finalizing Sec. 442.43(d) with technical
modifications to correct a grammatical error.)
Although we decline to add technical specifications for the data
format to the regulatory text, we do expect that States (or managed
care plans, as applicable) will make this information available in a
format that is accessible, downloadable, and otherwise usable for
members of the public.
Comment: A commenter noted support for the requirement that
language on the website be clear and easy to understand.
Response: We thank the commenter for their support. We are
finalizing the requirement at Sec. 442.43(d)(1) as proposed.
Comment: A few commenters supported quarterly review of the
website. A commenter suggested we require that missing or inaccurate
information be remedied within 2 weeks of the review. The commenter
stated that delayed reviews can lead to the posting of inaccurate data,
which hampers transparency initiatives. A commenter, noting the
importance of transparency in reporting, stated that States should
expect managed care plans to review their websites on a monthly basis
at a minimum.
Response: We are finalizing the review requirement at Sec.
442.43(d)(2) as proposed. We agree with commenters that quarterly
review is an appropriate review frequency that balances oversight with
administrative burden, given that the data itself are updated annually.
We note that States or managed care plans have discretion to review the
website more frequently as needed. We also decline to require a
specific deadline by which outdated or erroneous data or broken links
are to be updated, noting that issues might take different amounts of
time to resolve. We expect that States will ensure that outdated or
erroneous information, or broken links, will be remedied as promptly as
possible. In addition, if a State becomes aware that posted information
is outdated or erroneous and the issue cannot be addressed very
rapidly, we expect that the State (or managed care plan) will publish a
notice on the web page identifying the information concerned and
stating that revised information is expected to be published in the
future, giving the timeframe if available, so that the public will be
appropriately cautioned not to rely on the outdated or erroneous
information.
Comment: A few commenters stated that the accessibility standards
outlined in the proposal appear sufficient to ensure access and
availability of information, including to people with disabilities,
people with limited English proficiency, and people who require the
information in other languages. A few commenters also supported the
requirement requiring prominent language that additional assistance is
[[Page 40933]]
available at no cost, with clear instructions for requesting assistance
or additional accommodations. A commenter suggested that the website
include the contact information for a ``designated individual within
the State Medicaid agency responsible for nursing facility oversight
who is available to address any accessibility concerns.'' One commenter
recommended we require the website include the State Medicaid agency
contact information so that members of the public can contact someone
with questions about the data.
Response: We are finalizing the accessibility requirements at Sec.
442.43(d) introductory text and (d)(3) as proposed. We decline to
formalize any additional requirements in the regulatory text but agree
that including relevant contact information on the website is important
for ensuring the information is available and accessible to the public.
We also note that having contact information on the website for a
relevant contact at the State Medicaid agency would aid in the
quarterly review finalized at Sec. 442.43(d)(2) by allowing the public
to notify the State of any errors or operational issues with the
website. We encourage States to implement this practice, even though we
are not formally requiring its adoption.
Comment: A commenter did not support requiring the public posting
of facilities' cost data. The commenter noted that this may be
particularly problematic for ICFs/IID, which range in size and can be
quite small. The commenter was concerned that publicizing facilities'
cost data could lead to inaccurate (presumably negative) conclusions
being drawn about the facilities.
Response: The requirement is only for States to publish the percent
of a facility's Medicaid payments that are going to worker
compensation, not more detailed cost data (such as the amount of
Medicaid payments or the amount paid to workers). While States may, at
their discretion, decide to publish more detailed information, we
believe the Federal requirement strikes a balance between promoting
transparency and allowing for the sharing of aggregated (rather than
granular) data about facilities' financial activities.
We did not receive comments on our proposal at Sec. 442.43(e).
After consideration of the comments received, we are finalizing
Sec. 442.43(d) with minor technical modifications to change ``MCO and
PIHP websites'' to ``MCO's and PIHP's websites.'' We are finalizing
Sec. 442.43 (e) as proposed.
H. Applicability Date and Application to Managed Care
For reasons discussed in 88 FR 61389 through 61390, we proposed, at
Sec. 442.43(f), to provide States with 4 years to implement these
requirements in FFS delivery systems following the effective date of
the final rule. This proposed timeline reflects feedback from States
and other interested parties that it could take 3 to 4 years for States
to complete any necessary work to amend State regulations, policies,
operational processes, information systems, and contracts to support
implementation of the proposals outlined in this section. We invited
comments on whether this timeframe is sufficient, whether we should
require a shorter or longer timeframe (such as 3 or 5 years) to
implement these provisions, and if a shorter or longer timeframe is
recommended, the rationale for that shorter or longer timeframe.
In the context of Medicaid coverage of nursing facility and ICF/IID
services, we believe that the foregoing reasons for the reporting
requirements proposed in this rule apply to the delivery of these
services regardless of whether they are covered directly by the State
on an FFS basis or by a managed care plan for its enrollees.
Accordingly, we proposed to apply the requirements at Sec. 442.43 to
both FFS and managed care delivery systems through adoption by
reference in a new regulation in 42 CFR part 438, which generally
governs Medicaid managed care programs. Specifically, we proposed to
add a cross-reference to the requirements in proposed Sec. 438.72(a)
to be explicit that States that include nursing facility and/or ICF/IID
services in their MCO or PIHP contracts would have to amend their
contracts to the extent necessary to comply with the requirements at
Sec. 442.43 and proposed at Sec. 442.43(b) that payments from MCOs
and PIHPs count as Medicaid payments for purposes of those
requirements. We believe this would make the obligations of States that
implement LTSS programs through a managed care delivery system clear
and consistent with the State obligations for Medicaid FFS delivery
systems. Additionally, for States with managed care delivery systems
under the authority of section 1915(a), 1915(b), 1932(a), or 1115(a) of
the Act and that include coverage of nursing facility services and/or
ICF/IID services in the MCO's or PIHP's contract, we proposed to
provide States until the first managed care plan contract rating period
that begins on or after the date that is 4 years after the effective
date of the final rule to implement these requirements. We solicited
feedback on the proposed application of the reporting requirement to
managed care delivery systems, and the proposed timeframe for
compliance. We also invited comments on whether the proposed effective
date timeframe is sufficient, whether we should require a longer
timeframe (such as 5 years) to implement these provisions, and if a
longer timeframe is recommended, the rationale for that longer
timeframe.
We received comments on these proposals. The following is a summary
of these comments and our responses.
Comment: A few commenters suggested that we shorten the timeframe
for compliance, especially given the importance of the data being
collected and the urgency of the understaffing in facilities. A
commenter stated that 4 years was unnecessarily long and recommended 2
years as a reasonable alternative. A few commenters recommended 3
years, stating that States and facilities should already have much of
the required data available.
A few commenters recommended a longer timeframe than 4 years, such
as 6 or 7 years. These commenters cited challenges such as limited
State staff and financial resources to dedicate to completing this
reporting requirement; obligations to comply with other new reporting
obligations; a backlog of eligibility determinations following the end
of the COVID-19 Public Health Emergency; support needed to help
providers, especially smaller providers, update their systems to report
the necessary data; and time and resources needed to update States'
systems to collect, process, and audit the required data.
One commenter supported the 4-year applicability date if the rule
is finalized as proposed.
Response: We are finalizing the 4-year applicability date that we
proposed at Sec. 442.43(f). We believe that 4 years strikes an
appropriate balance between obtaining these data as quickly as possible
and acknowledging that some States and providers will need time to
update systems. As noted in prior responses, we also intend to make the
reporting methodology and reporting format available to the public
through the Paperwork Reduction Act notice and comment process. We
believe the 4-year delayed applicability date provides sufficient time
for this process, as well as any subregulatory guidance or technical
assistance needed to assist States to prepare for and be in compliance
with the requirements.
We did not receive specific comments on the proposal to add a
cross-reference at Sec. 438.72(a) to apply the reporting requirements
finalized at Sec. 442.43 to
[[Page 40934]]
managed care plans and the associated applicability date for MCOs and
PIHPs.
After consideration of the comments received, we are finalizing the
substance of Sec. 442.43(f) as proposed, but with minor modifications
to correct erroneous uses of the word ``effective.'' We are retitling
the requirement at Sec. 442.43(f) Applicability date (rather than
Effective date). We are also modifying the language at Sec. 442.43(f)
to specify that States must comply with the requirements in Sec.
442.43 beginning 4 years from the effective date of this final rule,
rather than stating that Sec. 442.43 is effective 4 years after the
effective date of the final rule.
Additionally, we are finalizing both Sec. Sec. 442.43(f) and
438.72(a) with technical modifications (discussed in the next
paragraph) regarding the applicability date for States providing
nursing facility and ICF/IID services through managed care plans. The
purpose of these modifications is to streamline Sec. 438.72(a) and
consolidate all applicability dates in Sec. 442.43(f). We also believe
these modifications better align the structure of Sec. Sec. 438.72(a)
and 442.43(f) with similar requirements finalized at Sec. 438.72(b)
and a number of applicability dates in the Ensuring Access to Medicaid
Services Final Rule published elsewhere in this Federal Register.
As proposed, Sec. 438.72(a) included a requirement that States
that included nursing facility or ICF/IID services in their MCO and
PIHP contracts must comply with Sec. 442.43, as well as specifying
that States must comply with Sec. 442.43 by the first rating period
for contracts with the MCO or PIHP beginning on or after 4 years after
the effective date of the final rule. We are striking the applicability
date language from Sec. 438.72(a) and finalizing Sec. 438.72(a) with
modified language that simply specifies that the State must comply with
requirements at Sec. 442.43 for nursing facility and ICF/IID services.
We are finalizing Sec. 442.43(f) with a modification to add (with
minor modifications) the language that had been originally proposed at
Sec. 438.72(a), specifying that in the case of the State that
implements a managed care delivery system under the authority of
section 1915(a), 1915(b), 1932(a), or 1115(a) of the Act and includes
nursing facility services or ICF/IID services, States must comply
beginning the first rating period for contracts with the MCO or PIHP
beginning on or after 4 years after the effective date of the final
rule.
I. Future Guidance and Interested Parties Advisory Group Comment
Solicitation
As noted in the proposed rule at 88 FR 61390, as a result of
finalizing the proposals as discussed, we will establish new processes
and forms for States to meet the reporting requirements, provide
additional technical information on how States can meet the reporting
requirements, and establish new templates consistent with requirements
under the Paperwork Reduction Act. We invited comment on this approach,
particularly regarding any additional guidance we would need to provide
or actions we would need to take to facilitate States' implementation
of these proposed provisions.
Finally, in consideration of potential future rulemaking, we
requested comment on whether we should propose that States implement an
interested parties' advisory group in parallel with proposed
requirements at Sec. 447.203(b)(6) finalized in the Ensuring Access to
Medicaid Services rule published elsewhere in this Federal Register,
which requires States to establish an interested parties advisory group
to advise and consult on the sufficiency of FFS rates paid to direct
care workers providing certain HCBS. We solicited comment from the
public on whether we should consider developing requirements for States
to establish a similar group to advise and consult on nursing facility
and ICF/IID service rates.
We received a few comments from the public that supported this
proposal. We thank commenters for their feedback and will take the
comments into consideration should we pursue rulemaking in the future.
IV. Provisions of the Final Regulations
In this final rule, we are adopting the provisions of the September
6, 2023, proposed rule with the following modifications:
In Sec. 442.43(a)(1), we modified paragraph (a)(1)(ii) to
specify that compensation includes benefits, such as health and dental
benefits, life and disability insurance, paid leave, retirement, and
tuition reimbursement.
In Sec. 442.43(a)(2), we redesignated paragraphs
(a)(2)(vi) through (x) as paragraphs (a)(2)(vii) through (xi),
respectively, and added a new paragraph (a)(2)(vi) to include direct
support professionals to the definition. Additionally, we are
finalizing the newly redesignated paragraph (a)(2)(xi) with a
modification to include nurses and other staff that providing that
clinical supervision.
In Sec. 442.43(a)(3), we redesignated paragraph
(a)(3)(vi) as paragraph (a)(3)(vii) and added a new paragraph
(a)(3)(vi) to add security guards to the definition of support staff.
We are finalizing a new definition of excluded costs at
Sec. 442.43(a)(4), which are costs reasonably associated with
delivering Medicaid-covered nursing facility or ICF/IID services that
are not included in the calculation of the percentage of Medicaid
payments that is spent on compensation for direct care workers and
support staff. Such costs are limited to: (1) costs of required
trainings for direct care workers and support staff (such as costs for
qualified trainers and training materials); (2) travel costs for direct
care workers and support staff (such as mileage reimbursements and
public transportation subsidies); and (3) costs of personal protective
equipment for facility staff.
In Sec. 442.43(b), we removed ``by delivery system and,''
added language specifying that the Medicaid payments used in the
required calculation do not include excluded costs, and added a cross-
reference to Sec. 442.43(b)(3). We are also finalizing technical
modifications to improve clarity and correct grammatical errors.
We are finalizing a new Sec. 442.43(b)(3) to specify that
States must exclude data from Indian Health Service and Tribal health
program providers subject to 25 U.S.C. 1641.
In Sec. 442.43(d), we made minor technical modifications
for grammar and readability, including changing ``MCO and PIHP
websites'' to ``MCO's and PIHP's websites.''
In Sec. 442.43(f), we retitled the requirement
Applicability date and made minor modifications to the language to
specify that States must comply with Sec. 442.43 beginning 4 years
after the effective date of this final rule. We also added to Sec.
442.43(f) language (with minor modifications) that had been proposed in
Sec. 438.72(a) specifying that in the case of the State that
implements a managed care delivery system under the authority of
section 1915(a), 1915(b), 1932(a), or 1115(a) of the Act and includes
nursing facility services or ICF/IID services, States must comply
beginning the first rating period for contracts with the MCO or PIHP
beginning on or after 4 years after the effective date of the final
rule.
In Sec. 438.72(a), we struck the language specifying an
applicability date; the substance of this language was added to Sec.
442.43(f). We streamlined the language at Sec. 43.72(a) to specify
that States must comply with requirements
[[Page 40935]]
at Sec. 442.43 for nursing facility and ICF/IID services.
Throughout chapter 42 of the CFR we have updated
references to ``Sec. 483.70(e)'' to replace them with ``Sec.
483.71'', as appropriate to reflect the new designation for the
facility assessment requirements.
In Sec. 483.35, we redesignated the updates to existing
paragraph (a)(1) as a new paragraph (b) entitled ``Total nurse staffing
(licensed nurses and nurse aides)'' and renumbered the existing
paragraphs in Sec. 483.35 accordingly.
In Sec. 483.35, we added a requirement at new paragraph
(b)(1) for facilities to meet a minimum of 3.48 HPRD for total nurse
staffing. Requirements at new paragraphs (b)(1)(i) and (ii) require
facilities to also have a minimum of RN HPRD of 0.55 and NA HPRD of
2.45. In this redesignated paragraph we also are not including the
proposed requirement for determinations of compliance with HPRD
requirements to be made based on the most recent available quarter of
PBJ system data submitted in accordance with Sec. 483.70(p).
In Sec. 483.35, we revised newly redesignated paragraph
(c)(1) to add that facilities may be exempted from 8 hours per day of
the 24/7 RN onsite requirement if they meet the exemption criteria
outlined in new paragraph (h).
In Sec. 483.35, we added a new paragraph (c)(2) to
require that during any periods when the onsite RN requirements in
paragraph (c)(1) are exempted under paragraph (h), facilities must have
a registered nurse, nurse practitioner, physician assistant, or
physician available to respond immediately to telephone calls from the
facility.
In Sec. 483.35, we redesignated existing paragraphs (e)
and (f) as paragraph (f) and (g), respectively. In newly redesignated
paragraph (f), we revised the heading to read ``Nursing facilities:
Waiver of requirement to provide licensed nurses and a registered nurse
on a 24-hour basis.'' In newly redesignated paragraph (g), we revised
the heading to read ``SNFs: Waiver of the requirement to provide
services of a registered nurse for at least 112 hours a week''.
In Sec. 483.35, we redesignated proposed new paragraph
(g) as a new paragraph (h) and revised the heading to read ``Hardship
exemptions from the minimum hours per resident day and registered nurse
onsite 24 hours per day, for 7 days a week''.
In Sec. 483.35, we revised new paragraph (h) to add that
a facility may be exempted from both the minimum hours per resident day
required in paragraph (b) and 8 hours per day of the 24/7 RN onsite
requirement at paragraph (c)(1).
In Sec. 483.35, we revised new paragraph (h) to withdraw
the 20 mile distance qualifier for an exemption from the minimum hours
per resident day requirement. Qualifying location criteria to be
eligible for an exemption is based on workforce unavailability only.
In Sec. 483.35, we revised new paragraph (h) to modify
the transparency requirements that a facility must meet to receive an
exemption from the minimum hours per resident day and 8 hours of the
24/7 RN onsite requirements. In addition to demonstrating a good faith
effort to hire and identifying the annual amount of funds dedicated to
hiring efforts, facilities must also post in the facility and provide
notices to residents and the LTC ombudsman of their exemption status
and inability to comply with the minimum staffing requirements,
including the degree to which they do not meet the staffing
requirements.
In new Sec. 483.71, we modified the proposal at paragraph
(b) to clarify the required involvement of specific staff in the
development of the facility assessment. LTC facility staff, including
nursing home leadership (governing body, etc.) and direct care staff
(RNs; LPN/LVNs; NAs; representatives of direct care staff, if
applicable; and other specialties) must be offered the opportunity to
actively participate. Facilities must also solicit and consider input
from residents, and resident representatives.
We revised the implementation timeframe to reflect the
following:
++ Non-rural Facilities
++ Phase 1 (90 days after publication)--Facility Assessment Updates
(Sec. 483.71)
++ Phase 2 (2 years after publication)--Minimum 3.48 HPRD for total
nurse staffing and 24/7 RN Requirements (Sec. 483.35(b)(1) and (c)(1))
++ Phase 3 (3 years after publication)--Minimum .55 RN and 2.45 NA HPRD
Requirements (Sec. 483.35(b)(1)(i) and (ii))
++ Rural Facilities (as defined by OMB)
--Phase 1 (90 days after publication)--Facility Assessment Updates
(Sec. 483.71)
--Phase 2 (3 years after publication)--Minimum of 3.48 HPRD for total
nurse staffing HPRD and 24/7 RN Requirements (Sec. 483.35(b)(1) and
(c)(1))
--Phase 3 (5 years after publication)--Minimum .55 RN and 2.45 NA HPRD
Requirements (Sec. 483.35(b)(1)(i) and (ii))
V. Collection of Information Requirements
Under the Paperwork Reduction Act of 1995, we are required to
provide 60-day notice in the Federal Register and solicit public
comments before a collection of information requirement is submitted to
the Office of Management and Budget (OMB) for review and approval. In
order to fairly evaluate whether an information collection should be
approved by OMB, section 3506(c)(2)(A) of the Paperwork Reduction Act
of 1995 requires that we solicit comment on the following issues:
The need for the information collection and its usefulness
in carrying out the proper functions of our agency.
The accuracy of our estimate of the information collection
burden.
The quality, utility, and clarity of the information to be
collected.
Recommendations to minimize the information collection
burden on the affected public, including automated collection
techniques.
In analyzing information collection requirements (ICRs), we rely
heavily on wage and salary information. Unless otherwise indicated, we
obtained all salary information from the May 2022 National Occupational
Employment and Wage Estimates, BLS at https://www.bls.gov/oes/current/oes_nat.htm. We have calculated the estimated hourly rates in this rule
based upon the national mean salary for that particular position
increased by 100 percent to account for overhead costs and fringe
benefits. The wage and salary data from the BLS do not include health,
retirement, and other fringe benefits, or the rent, utilities,
information technology, administrative, and other types of overhead
costs supporting each employee. The HHS wide guidance on preparation of
regulatory and paperwork burden estimates states that doubling salary
costs is a good approximation for including these overhead and fringe
benefit costs.
[[Page 40936]]
Table 5 presents the BLS occupation code and title, the associated
LTC facility staff position in this regulation, the estimated average
or mean hourly wage, and the adjusted hourly wage (with a 100 percent
markup of the salary to include fringe benefits and overhead costs).
Where available, the mean hourly wage for Nursing Care Facilities
(Skilled Nursing Facilities) \93\ was used.
BILLING CODE 4120-01-C
[GRAPHIC] [TIFF OMITTED] TR10MY24.086
We solicited public comments on each of these issues for the
following sections of this document that contain information collection
requirements (ICRs). Based upon our analysis of comments received, we
are revising our burden estimates and adding a burden estimate for LTC
facilities (LTCFs) to solicit and consider any input received by
residents, resident representatives, and family members. These
revisions and the addition are detailed below:
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\93\ https://www.bls.gov/oes/current/naics4_623100.htm.
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A. ICRs Regarding Sec. 483.35 Nursing Services
At Sec. 483.35(a), we proposed that each LTC facility would have
to provide 0.55 HPRD for RNs and 2.45 HPRD for NAs.
In the proposed rule, we analyzed the COI requirement as indicated
below.
[[Page 40937]]
These proposed requirements would require each LTC facility to review
and modify, as necessary, its policies and procedures regarding nurse
staffing. The review and modifications to the necessary policies and
procedures would require activities by the director of nursing (DON),
an administrator, and an administrative assistant. The DON and the
administrator would need to review the requirements, as well as the
facility assessment, to determine if any changes are necessary to the
policies and procedures and, if so, make those necessary changes. The
DON would then need to work with a medical administrative assistant to
ensure that those changes were made to the appropriate documents and
ensure that all appropriate individuals in the facility were made aware
of the changes. We estimated that these activities would require 2
burden hours for an administrator at a cost of $200 ($100 x 2 hours), 3
hours for the DON at a cost of $300 ($100 x 3 hours), and 1 hour for
the administrative assistant at a cost of $41 ($41 x 1 hour). Hence,
for each LTC facility the burden estimate would be 6 hours (2 + 3 + 1)
at a cost of $ 541 ($200 + $300 + $41). There are currently 14,688 LTC
facilities. Thus, the burden for all LTC facilities would be 88,128
(14,688 x 6 hours) hours at a cost of $7,946,208 ($541 x 14,688 LTCFs).
Comment: Numerous commenters generally contended the proposed
requirements were too burdensome and expensive. One provider
organization stated that the estimate for the ICR burden that included
two hours for an administrator, three hours for the DON, and one hour
for an administrative assistant were grossly underestimated. The
commenter asserted that LTC facilities would be required to review and
modify nurse staffing policies and procedures to become compliant with
the requirements, develop and modify contracts with staffing agencies,
engage in budget modification and staffing model reevaluations based on
the staff available to meet the new requirements, and determine
appropriate resident placement efforts when the facility cannot be
compliant with the requirements. The commenter also noted that there
were likely other activities that would be required as well.
Response: We agree with the commenter that the burden estimated in
the proposed rule for proposed Sec. 483.35(a) was understated. We note
that as discussed in section II.B.3. of this rule, we are finalizing at
Sec. 483.35(b) to require LTC facilities to provide a minimum total
nurse staffing requirement of 3.48 HPRD (paragraph (b)(1) introductory
text), which includes 0.55 HPRD of RNs (paragraph (b)(1)(i)) and 2.45
HPRD of NAs (paragraph (b)(1)(ii)).
We are revising and increasing the burden estimate particularly to
account for additional activities addressed by the commenters,
including the review and modification of contracts, staffing models,
and contingency planning to address when staffing or other resource
issues arise. Thus, we are revising our burden estimate to allow for 8
hours at a cost of $800 ($100 x 8) for the administrator, 7 hours at a
cost of $700 ($100 x 7 hours) for the DON, and 4 hours at a cost of
$164 ($41 x 4 hours) for the administrative assistant. Hence, the total
estimated burden for each LTC facility would be 19 hours at cost of
$1,664. For all 14,688 LTC facilities, the total estimated burden would
be 279,072 hours (19 hours x 14,688) at a cost of $24,440,832 ($1,664 x
14,688).
B. ICRs Regarding Sec. 483.71 Facility Assessment
At Sec. 483.71 Facility assessment, we proposed to relocate the
existing requirements at Sec. 483.70(e) Facility assessment to the new
Sec. 483.71. We also proposed to modify certain specific requirements
and add a third section that will set forth the activities for which we
expect LTC facilities to use their facility assessments.
We proposed to relocate current Sec. 483.70(e)(1)(i) through (v)
to Sec. 483.71(a)(1)(i) through (v). This section sets forth what the
facility assessment must address or include, but is not limited to,
regarding the facility's resident population. At Sec.
483.71(a)(1)(ii), we proposed to add ``using evidence-based, data-
driven methods'' (such as the MDS resident assessments or data from
QAPI activities) and ``behavioral health issues'' so that the
requirement would then read, ``The care required by the resident
population, using evidence-based, data driven methods that consider the
types of diseases, conditions, physical and behavioral health issues,
cognitive disabilities, overall acuity, and other pertinent facts that
are present within that population.'' At Sec. 483.71(a)(1)(iii), we
proposed to add ``and skill sets'' so the requirement would read, ``The
staff competencies and skill sets that are necessary to provide the
level and types of care needed for the resident population.'' These
modifications constitute clarifications in the requirements and are not
new requirements for which the LTC facilities must comply. Hence, we
will not be analyzing any new or additional burden related to those
changes.
We proposed to relocate the current requirements at Sec.
483.70(e)(2)(i) through (vi) to Sec. 483.71(a)(2)(i) through (vi). At
Sec. 483.71(a)(2)(iii), we proposed to add ``behavioral health'' so
that the requirement would read, ``Services provided, such as physical
therapy, pharmacy, behavioral health, and specific rehabilitation
therapies.'' Behavioral health services requirements are set forth at
Sec. 483.40 and are integral to the health of residents. All LTC
facilities should be considering the behavioral health care needs of
their residents. Hence, this change does not constitute a new
requirement but a clarification. Hence, we did not analyze any new or
additional burden related to this change.
We proposed to add a new requirement at Sec. 483.71(a)(4) for LTC
facilities to incorporate the input of facility staff and their
representatives into their facility assessment. These staff categories
included, but were not limited to, nursing home leadership, management,
direct care staff and representatives and other service workers. LTC
facilities already include many of these categories of individuals when
they conduct or update their facility assessments. Thus, this
requirement constitutes a clarification and not a new requirement.
Hence, we did not analyze any new or additional burden related to this
change.
We proposed to add new requirements at Sec. 483.71(b). These
requirements set forth specific activities for which the LTC facilities
would be expected to use their facility assessments. These assessments
would inform staffing decisions to ensure that a sufficient number of
staff with the appropriate competencies and skill sets necessary to
care for its residents' needs as identified through resident
assessments and plans of care as required in Sec. 483.35(a)(3);
consider specific staffing needs for each resident unit in the
facility, and adjust as necessary based on changes its to resident
population; consider specific staffing needs for each shift, such as
day, evening, night, and adjust as necessary based on any changes to
its resident population; and, develop and maintain a plan to maximize
recruitment and retention of direct care staff.
LTC facilities are either already using their facility assessments
for these activities or will be based upon the other requirements in
the proposed rule, except for using their facility assessments to
develop and maintain a plan to maximize recruitment and
[[Page 40938]]
retention of direct care staff. Based upon our experience with LTC
facilities, these facilities are already working on recruitment and
retention of direct care staff. However, these facilities would need to
review their current efforts to determine if there are opportunities to
improve their efforts and, if so, decide how to do so. The LTC
facility's facility assessment would require the development of a plan
to maximize recruitment and retention and accomplish the associated
tasks and would also be an invaluable tool in assessing and maintaining
sufficient staff for their facility.
The staff involved in developing this plan would vary by the type
of care and services provided by the individual facilities. Some LTC
facilities might have various therapists on staff, such as physical and
occupational therapists. Others might employ psychologists, social
workers, or complementary medicine or American Indian/Alaska Native
Traditional Healers who provide behavioral health services to
residents. When developing a recruitment and retention plan, we
encourage LTC facilities to include participation and input from the
various types of direct care staff in their facilities and
representatives of these workers. We note that the time spent by these
staff to participate in the facility assessment process should not be
substituted for the direct care minimums for RNs and NAs required under
this rule. All LTC facilities provide 24-hour nursing services and the
direct care nursing staff would include RNs, other licensed nurses
(LPNs or LVNs), and nursing assistants (NAs). For the purpose of
estimating the burden for developing a recruitment and retention plan,
we estimated the burden for an administrator, the DON, and one
individual from each of the nursing categories, an RN, LPN/LVN, and NA
to develop the plan. These individuals would have to meet to develop a
plan and then the administrator will need to obtain approval for the
plan from the governing body. During the development process and after
approval, an administrative assistant would need to provide support and
ensure the plan is disseminated and saved appropriately in the
facility's records. We estimated that developing a recruitment and
retention plan would require 6 hours for an administrator at a cost of
$600 ($100 x 6 hours); 6 hours for the DON at a cost of $600 ($100 x 6
hours); 4 hours for a RN at a cost of $296 ($74 x 4 hours); 2 hours for
a LPN/LVN at a cost of $112 ($56 x 2 hours); 2 hours for a nursing
assistant at a cost of $68 ($34 x 2); and, 2 hours for an
administrative assistant $82 ($41 x 2 hours). Thus, the burden for each
LTC facility is 22 (6 + 6 + 4 + 2 + 2 + 2) hours at an estimated cost
of $1,758 ($600 + $600 + $296 + $112 + $68 + 82). For all 14,688 LTC
facilities the burden would be 323,136 hours (14,688 LTCFs x 22 hours)
at an estimated cost of $25,821,504 ($1,758 x 14,688 LTCFs).
Comment: Numerous commenters generally contended the proposed
requirements regarding the facility assessment were too burdensome and
expensive. One provider organization stated that the estimate of 22
staff hours for the facility assessment requirement grossly
underestimated the burden to a LTC facility. One provider organization
stated that complying with this requirement would require multiple
staff members a significant amount of time to comply. Also, compliance
would require an ongoing effort by multiple staff members. The
commenter acknowledged that estimating the burden is complicated since
it depends upon the number of revisions and is influenced by the
changes in the resident population and staff in each facility.
Response: We agree with the commenter that there are more
activities related to complying with the facility assessment
requirement than were considered in the proposed rule. As discussed in
detail in section II.B.6. of this rule, we are finalizing as proposed
all of the proposed changes regarding the facility assessment, except
for Sec. 483.71(b) that has been revised to require LTC facilities to
require the active participation of the nursing home leadership and
management, including but not limited to, a member of the governing
body, the medical director, an administrator and the director of
nursing; and direct care staff, including but not limited to, RNs,
LPNs/LVNs, and NAs, and representatives of the direct care staff, if
applicable. The LTC facility must also solicit and consider input
received from residents, resident representatives, and family members.
Based upon our review and analysis of comments related to this
estimated burden and our substantive revisions in this final rule, we
have revised the estimated burden for the facility assessment
requirement as detailed below.
In the proposed rule, for the development of this staffing plan the
estimated burden was 22 hours at a cost of $1,758. Based upon the
comments received and further analysis, we now estimate that developing
a recruitment and retention plan would require 10 hours for an
administrator at a cost of $1000 ($100 x 10 hours); 10 hours for the
DON at a cost of $1000 ($100 x 10 hours); 8 hours for a RN at a cost of
$592 ($74 x 8 hours); 4 hours for a LPN/LVN at a cost of $224 ($56 x 4
hours); 5 hours for a nursing assistant at a cost of $170 ($34 x 5
hours); and, 3 hours for an administrative assistant $123 ($41 x 3
hours). Thus, the burden for each LTC facility is 407 (10 + 10 + 8 + 4
+ 5 + 3 = 40) hours at an estimated cost of $ 3,109 ($ 1000 + $1000 +
$592 + $224 + $170 + 123). For all 14,688 LTC facilities the burden
would be 587,520 hours (14,688 LTCFs x 40) at an estimated cost of
$45,664,992 ($3,109 x 14,688 LTCFs).
In addition, this rule finalizes revisions to the facility
assessment that would also require additional burden. For Sec.
483.71(b), we proposed that LTC facilities would be required to include
the input of facility staff, including, but not limited to nursing home
leadership, management, direct care staff, the representatives of
direct care employees, and staff providing other services. We did not
assess a burden for this proposal because it was a clarification and
not a new requirement. However, as finalized by this rule, Sec.
483.71(b) now requires that the LTC facility ensure the active
involvement of nursing home leadership and management, including but
not limited to, a member of the governing body, the medical director,
an administrator and the director of nursing; and, direct care staff,
including but not limited to, RNs, LPNs/LVNs, NAs; and, representatives
of direct care staff, if applicable. The LTC facility must also solicit
and consider input from residents, resident representatives, and family
members. We believe that many of the specifically named staff positions
are already included by most LTC facilities in their facility
assessment development, review, and updating process. We are also not
estimating a burden for the active participation of representatives of
direct care staff, if applicable, because assisting those they
represent already falls within their responsibilities. If any of the
direct care staff have representatives, the LTC facility should be
aware of those individuals. However, soliciting and considering any
input received by residents, resident representatives, family members
is a new requirement. We are not estimating a burden for reviewing the
input since this would be part of the facility assessment process.
Thus, a burden estimate is being assessed for the activities required
to comply with that requirement. These revisions are detailed below.
[[Page 40939]]
For a LTC facility to solicit input from residents, resident
representatives, and family members would require the LTC facility to
identify all of these individuals, make them aware of the facility
assessment process, and then solicit their input. LTC facilities would
differ in how they communicate to the named individuals. Although LTC
facilities are not required to establish resident or family groups,
residents do have the right to organize and participate in resident
groups (Sec. 483.10(f)(5)). If residents do form resident or family
groups, the LTC facility must provide the group(s) with private space
for them to meet and take reasonable steps, with the approval of the
group, to make residents and family members aware of upcoming meetings
in a timely manner. Based upon our experience, most LTC facilities have
established resident or family groups. LTC facilities could easily use
these established communications pathways, as well as posting notices
and sending emails to solicit input for the facility assessment from
the named individuals. To comply with the requirement to solicit the
input of these individuals identified in the facility assessment
requirement, we estimate this would require an administrator 1 hour at
$100 per hour ($100 x 1 hour = $100) to draft the text of the
communication and then an administrative assistant 2 hours at $41 per
hour ($41 x 2 hours = $82) to forward the communication to the required
individuals. The text of the communication should include a brief
description of the facility assessment process, the opportunity to
submit input, how that input can be submitted, and the deadline to
submit the input. This would likely include posting of a notice in the
LTC facility and forwarding the communication to the facility's
resident or family group(s). The consideration of this input would then
be part of the facility assessment review and updating process.
Hence, the burden for each LTC facility would be 3 hours (1 + 2 =
3) at an estimate cost of $182 ($100 + $82 = $182). For all 14,688 LTC
facilities, the total estimated burden would be 44,064 hours (14,688
LTCFs x 3 hours = 44,064) at a cost of $2,673,216 ($182 x 14,688 LTCFs
= 2,673,216).
The total estimated burden for the ICRs in part 483 is 910,656
(279,072 + 587,520 + 44,064) hours at a cost of $72,779,040
($24,440,832 + $45,664,992 + 2,673,216).
[GRAPHIC] [TIFF OMITTED] TR10MY24.087
The burden will be included in this revised Information Collection
Request under the OMB control number 0938-1363; Expiration date: April
30, 2026.
C. ICR Related to Medicaid Institutional Payment Transparency
1. Wage Estimates
To derive average costs, we used data from the U.S. Bureau of Labor
Statistics (BLS) May 2022 National Occupational Employment and Wage
Estimates for all salary estimates (https://www.bls.gov/oes/current/oes_nat.htm). In this regard, table 7 presents BLS's mean hourly wage,
our estimated cost of fringe benefits and other indirect costs
(calculated at 100 percent of salary), and our adjusted hourly wage.
[[Page 40940]]
[GRAPHIC] [TIFF OMITTED] TR10MY24.088
For States and the private sector, our employee hourly wage
estimates have been adjusted by a factor of 100 percent. This is
necessarily a rough adjustment, both because fringe benefits and other
indirect costs vary significantly across employers, and because methods
of estimating these costs vary widely across studies. Nonetheless, we
believe that doubling the hourly wage to estimate total cost is a
reasonably accurate estimation method.
To estimate the financial burden on States related to the finalized
Medicaid Institutional Payment Transparency Reporting provisions
(discussed below), it was important to consider the Federal
Government's contribution to the cost of administering the Medicaid
program. The Federal Government provides funding based on a Federal
medical assistance percentage (FMAP) that is established for each
State, based on the per capita income in the State as compared to the
national average. FMAPs range from a minimum of 50 percent in States
with higher per capita incomes to a maximum of 83 percent in States
with lower per capita incomes. For Medicaid, all States receive a 50
percent FMAP for administration. States also receive higher Federal
matching rates for certain systems improvements, redesign, or
operations. Taking into account the Federal contribution to the costs
of administering the Medicaid programs for purposes of estimating State
burden with respect to collection of information, we elected to use the
higher end estimate that the States would contribute 50 percent of the
costs, even though the burden would likely be smaller given that some
States contributions will be less than 50 percent. We requested comment
on our estimated number of burden hours for the proposal for each of
the activities and total annual burden and cost for each facility. We
did not receive specific comments on these burden estimates.
3. Information Collection Requirements (ICRs)
The following finalized changes will be submitted to OMB for their
approval when our survey instrument has been developed; we are using
feedback received during public comment on the proposed rule to inform
the development of the survey instrument. The survey instrument and
burden will be made available to the public for their review under the
standard non-rule PRA process which includes the publication of 60- and
30-day Federal Register notices. In the meantime, we are setting out
our preliminary burden figures (see below) as a means of estimating the
impact of this finalized rule. The availability of the survey
instrument and more definitive burden estimates will be announced in
both Federal Register notices. The CMS ID number for that collection of
information request is CMS-10851 (OMB control number 0938-TBD). Since
this would be a new collection of information request, the OMB control
number has yet to be determined (TBD) but will be issued by OMB upon
their approval of the new information collection request. Note that we
intend that the following finalized changes associated with Sec.
442.43(b), (c), and (d), discussed later in this section, will be
submitted to OMB for review as a single PRA package under control
number 0938-TBD (CMS-10851).
a. State and Provider Burden Under Sec. 442.43(b) and (c)--Payment
Transparency Reporting
As discussed in section III. of this final rule, under our Medicaid
authority at sections 1902(a)(6) and 1902(a)(30)(A) of the Act with
respect to FFS delivery systems, and sections 1902(a)(4) and 1932(c) of
the Act with respect to managed care delivery systems, we proposed and
are finalizing new reporting requirements at Sec. 442.43(b) for States
to report annually on the percent of payments for Medicaid-covered
services delivered by nursing facilities and ICFs/IID that are spent on
compensation for direct care workers and support staff. (Our
definitions of who is included in direct care workers and support
staff, finalized at Sec. 442.43(a)(2) and (3), respectively, are
discussed in the preamble in section III. of this rule.) The intent of
this requirement is for States to report separately, at the facility
level, on the percent of payments for nursing facility services that
are spent on compensation to direct care workers, the percent of
payments for nursing facility services that are spent on compensation
to support staff, the percent of payments for ICF/IID services that are
spent on compensation to direct care workers, and the percent of
payments for ICF/IID services that are spent on compensation to support
staff. We proposed and are finalizing a cross-reference to the
requirements in Sec. 438.72 to specify that States that include
nursing facility and ICF/IID services in their contracts with managed
care organizations (MCOs) or prepaid inpatient health plans (PIHPs)
would have to comply with the requirements at Sec. 442.43(b). Where
they appear, references to the requirements at
[[Page 40941]]
Sec. 442.43(b) apply to both FFS and managed care delivery systems.
We considered, but are not finalizing, additional requirements that
States report on median hourly compensation for direct care workers and
median hourly compensation for support staff, in addition to the
percent of Medicaid payments going to overall compensation for these
workers. We considered, but are not finalizing, adding at Sec.
442.43(c) a provision requiring that States make publicly available
information about the underlying FFS payment rates themselves for
nursing facility and ICF/IID services. We note that our cost estimates
in the proposed rule included estimated costs for both of these
additional reporting requirements and are no longer reflected in this
ICR. We also note that we are finalizing an additional requirement
(discussed in section III. of this final rule) that will allow
providers to exclude certain costs (such as certain costs related to
training, travel, and PPE) from their Medicaid payments when
calculating the percent of Medicaid payments spent on compensation to
direct care workers and support staff. We anticipate that this may lead
to a slight increase in the State's burden to develop guidance for
providers on how to apply these excluded costs in facility settings and
have adjusted the ICR accordingly.
(1) State Institutional Payment Transparency Reporting Requirements and
Burden
The burden associated with the reporting requirements finalized in
this rule would affect all 51 States (including Washington, DC). While
not all States cover ICF/IID services (because it is an optional
Medicaid benefit), all States must offer Medicaid nursing facility
services (because it is a mandatory Medicaid benefit). Thus, we
anticipate that all 51 States (including Washington, DC) would
participate in the reporting requirements proposed at Sec. 442.43(b).
Additionally, three territories (Guam, Puerto Rico, and the U.S. Virgin
Islands) are required to include nursing facility services in their
State plans, and thus are included in these calculations as well.\94\
While we included these territories in our cost estimates, we continue
to refer to the affected entities collectively as ``States''. We
estimated both a one-time and ongoing burden to States to implement
these requirements at the State level.
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\94\ Note that due to waiver under section 1902(j) of the Social
Security Act, American Samoa and the Commonwealth of the Northern
Marianas Islands are not required to include nursing facility
services in their State plans and thus are not included in these
estimates. Additionally, no territory currently includes the
optional ICF/IID benefit in their State plan.
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One-Time Reporting Requirements and Burden (Sec. 442.43(b)): States
Under finalized Sec. 442.43(b) and (c), we anticipate as a one-
time burden that States, through their designated State Medicaid
agency, would have to: (1) draft new policy describing the State-
specific reporting process (one-time); (2) update any related provider
manuals and other policy guidance, including guidance on excluded costs
(one-time); (3) build, design, and operationalize an electronic system
for data collection and aggregation (one-time); and (4) develop and
conduct an initial training for providers on the reporting requirement
and State-developed reporting system (one-time). We note that we are
not requiring that States update their Medicaid State plans as part of
this reporting requirement, and thus we did not estimate a burden
associated with State plan amendments.
With regard to this one-time burden for States, we estimate it
would take: 40 hours at $111.18/hr. for an administrative services
manager to draft new policy describing the State-specific reporting
process; 40 hours at $100.64/hr. for a management analyst to update any
related provider manuals and other policy guidance; 40 hours at $98.84/
hr. for a computer programmer to build, design, and operationalize an
electronic system for data collection on the percent of Medicaid
payments going to compensation; 30 hours at $67.18/hr. for a training
and development specialist to develop and conduct training for
providers on the reporting requirement and system; 3 hours at $118.14/
hr. for a general and operations manager to review and approve policy
updates, provider agreement updates, and training materials; and 1 hour
at $236.96/hr. for a chief executive to review and approve all
operations associated with this requirement.
In addition to these activities outlined above, States may also
have to update managed care contracts to reflect the new reporting
requirement and provide managed care-specific guidance on the reporting
requirement. Recent data indicates that 24 States provide at least some
long-term services through a managed care delivery system.\95\ For the
managed care-specific burden, we estimate 10 hours at $111.18/hr. for
an administrative services manager to draft updates to managed care
plan (that is, MCO and/or PIHP) contracts. (We anticipate that all
other State activities associated with managed care plans would be
reflected in the activities described previously in this section.)
---------------------------------------------------------------------------
\95\ Data taken from Centers for Medicare & Medicaid Services,
``Managed Long Term Services and Supports (MLTSS) Enrollees,''
available at https://data.medicaid.gov/dataset/5394bcab-c748-5e4b-af07-b5bf77ed3aa3.
---------------------------------------------------------------------------
In aggregate, we estimate a one-time burden of 6,926 hours [(164
hours x 54 States) + (10 x 24 States)]. We estimate a cost of $811,792
(54 States x [(40 hr. x $111.18) + (40 hr. x $100.64) + (25 hr. x
$98.84) + (30 hr. x $67.18) + (3 hr. x $118.14) + (1 hr. x $236.96)]),
with an additional $26,683 for managed care-related costs (24 States x
[10 hr. x $111.18]). The total cost is estimated at $838,475 ($811,792
+ $26,683). Taking into account the Federal contribution to Medicaid
administration, the estimated State share of the cost would be $419,237
($838,475 x 0.50).
BILLING CODE 4120-01-P
[[Page 40942]]
[GRAPHIC] [TIFF OMITTED] TR10MY24.089
BILLING CODE 4120-01-C
Ongoing Reporting Requirements and Burden (Sec. 442.43(b)): States
Under finalized Sec. 442.43(b), we estimate as ongoing burdens
that States would: (1) notify and train nursing facility and ICF/IID
providers about the annual reporting requirement, including the State-
level process for collecting data (ongoing); (2) collect information
from providers annually (ongoing); (3) aggregate or stratify data as
needed (ongoing); (4) derive percentages for compensation (ongoing);
and (5)
[[Page 40943]]
develop a report for CMS on an annual basis (ongoing).
With regard to the ongoing burden, we estimate it would take: 8
hours at $67.18/hr. for a training and development specialist to notify
and train providers about annual reporting requirement; 2 hours at
$100.64 for a management analyst to review and make any needed updates
to guidance for nursing facility and ICF/IID services; 6 hours at
$98.84/hr. for a computer programmer to collect information from
providers, aggregate data as needed, derive percentages for
compensation, and develop a report for the State; 2 hours at $118.14/
hr. by a general and operations manager to review, verify, and submit
the report to CMS; and 1 hour at $236.96/hr. for a chief executive to
review and approve all operations associated with this requirement.
In aggregate, we estimate an ongoing burden of 1,026 hours (19
hours x 54 States) at a cost of $97,470 (54 States x [(8 hr. x $67.18)
+ (2 hr. x $100.64) + (6 hr. x $98.84) + (2 hr. x $118.14) + (1 hr. x
$236.96)]. Taking into account the Federal contribution to Medicaid
administration, the estimated State share of this cost would be $48,735
($97,470 x 0.50) per year.
[GRAPHIC] [TIFF OMITTED] TR10MY24.090
(2) Nursing Facility and ICF/IID Institutional Payment Transparency
Reporting Requirements and Burden
The burden associated with this final rule would affect nursing
facility and ICF/IID providers in both FFS and managed care systems. We
estimate both a one-time and ongoing burden to implement the reporting
requirement finalized at Sec. 442.43(b).
To estimate the number of nursing facility and ICF/IID providers
that are being impacted by this rule, we used data from the CMS Quality
Certification and Oversight Reports (QCOR) system (qcor.cms.gov) to
identify the total number of Medicaid-certified nursing facilities and
ICFs/IID in all States (including Washington, DC) and the three
territories that are required to include nursing facility services in
their State plan. Data from QCOR indicates that in FY 2022, there were
14,194 freestanding Medicaid-certified nursing facilities (including
facilities dually certified for both Medicare and Medicaid, and
Medicaid-only facilities). Additionally, in FY 2022, there were 5,713
ICFs/IID. In total, we estimate 19,907 Medicaid-certified nursing
facilities and ICFs/IID are impacted by this finalized reporting
requirement and may need to provide data to the State on what
percentage of their Medicaid reimbursements for nursing facility and
ICF/IID services went to direct care worker and support staff
compensation.
Under finalized Sec. 442.43(b), we anticipate that nursing
facilities and ICFs/IID would need to: (1) learn the State-specific
reporting policies and process (one-time); (2) calculate compensation
for each direct care worker and support staff if they do not
[[Page 40944]]
already have that information readily available (one-time); and (3)
build, design and operationalize an internal system for developing the
report for the State (one-time).
One-Time Reporting Requirements and Burden (Sec. 442.43(b)): Nursing
Facility and ICF/IID Providers
With regard to the one-time burden for providers, we estimate it
would take: 10 hours at $73.00/hr. for a compensation, benefits, and
job analysis specialist to learn the State-specific reporting policy
and calculate compensation for each direct care worker and support
staff; 10 hours at $98.84/hr. for a computer programmer to build,
design, and operationalize an internal system for developing the report
for the State; and 1 hour at $118.14/hr. for a general and operations
manager to review and approve the reporting system. In aggregate, we
estimate a one-time burden of 418,047 hours (19,907 facilities x 21
hours) at a cost of $36,560,002 (19,907 providers x [(10 hr. x $73.00)
+ (10 hr. x $98.84) + (1 hr. x $118.14)].
[GRAPHIC] [TIFF OMITTED] TR10MY24.091
Ongoing Reporting Requirements and Burden (Sec. 442.43(b)): Nursing
Facility and ICF/IID Providers
With regard to the ongoing burden, we anticipate nursing facilities
and ICFs/IID will have to: (1) update compensation calculations to
account for on-going staffing changes among direct care workers and
support staff (in other words, ensure their system includes newly hired
direct care workers or support staff and takes into account staff
departures); (2) calculate the aggregated compensation of direct care
workers and support staff as a percentage of their annual Medicaid
claims (ongoing); and (3) report the information to the State annually
(ongoing).
We estimate it would take 8 hours at $73.00/hr. for a compensation,
benefits, and job analysis specialist to update compensation
calculations to account for staffing changes; 2 hours at $98.84/hr. for
a computer programmer to calculate compensation, aggregate data, and
report to the State as required; and 1 hour at $118.14/hr. for a
general and operations manager to review, approve, and submit the
report to the State. In aggregate, we estimate an on-going burden of
218,977 hours (19,907 providers x 11 hours) at a cost of $17,912,717
(19,907 facilities x [(8 hr. x $73.00) + (2 hr. x $98.84) + (1 hr. x
$118.14)].
[[Page 40945]]
[GRAPHIC] [TIFF OMITTED] TR10MY24.092
b. State Website Posting Requirements and Burden (Sec. 442.43(d))
At Sec. 442.43(d), we are finalizing the requirement for States to
operate a website that meets the availability and accessibility
requirements at 42 CFR 435.905(b) and that provides the results of the
finalized reporting requirements in Sec. 442.43(b). We also are
finalizing at Sec. 442.43(d) that States must verify, no less than
quarterly, the accurate function of the website and the timeliness of
the information and links.
As noted previously, we anticipate that this provision will affect
all 51 States (including Washington, DC) and the territories required
to have nursing facility services in their State plans which we refer
to collectively as ``States.'' We estimate both a one-time and ongoing
burden to implement these requirements at the State level, which would
be the same regardless of whether the State offers nursing facility and
ICF/IID services through FFS or managed care systems. In developing our
burden estimate, we assumed that States would provide the data and
information that States are required to report under newly proposed
Sec. 442.43(d) by adding to an existing website, rather than
developing an entirely new website to meet this requirement. We note
that we are not requiring that States update their Medicaid State plans
as part of this reporting requirement and are not estimating a burden
associated with State plan amendments.
One Time Website Posting Requirements and Burden (Sec. 442.43(d)):
States
With regard to the one-time burden, based on the website
requirements, we estimate it would take: 10 hours at $111.18/hr. for an
administrative services manager to determine the content of the
website; 30 hours at $98.84/hr. for a computer programmer to develop
the website; 1 hour at $118.14/hr. for a general and operations manager
to review and approve the website; and 1 hour at $236.96/hr. for a
chief executive to review and approve the website. In aggregate, we
estimate a one-time burden of 2,268 hours (54 States x 42 hours) at a
cost of $239,333 (54 States x [(10 hr. x $111.18) + (30 hr. x $98.84) +
(1 hr. x $118.14) + (1 hr. x $236.96)]. Taking into account the Federal
contribution to Medicaid administration, the estimated State share of
this cost would be $119,667 ($239,333 x 0.50) per year.
[[Page 40946]]
[GRAPHIC] [TIFF OMITTED] TR10MY24.093
Ongoing Website Posting Requirements and Burden (Sec. 442.43(d)):
States
With regard to the States' ongoing burden related to the website
requirement, per quarter we estimate it would take: 2 hours at $111.18/
hr. for an administrative services manager to provide any updated data
and information for posting and to verify the accuracy of the website;
8 hours at $98.84/hr. for a computer programmer to make any needed
updates to the website; 1 hour at $118.14/hr. for a general and
operations manager to review and approve the website; and 1 hour at
$236.96/hr. for a chief executive to review and approve the website. In
aggregate, we estimate an ongoing annual burden of 2,592 hours (12
hours x 54 States x 4 quarters) at a cost of $295,527 (54 States x 4
quarters x [(2 hr. x $111.18) + (8 hr. x $98.84) + (1 hr. x $118.14) +
(1 hr. x $236.96)]. Taking into account the Federal contribution to
Medicaid administration, the estimated State share of this cost would
be $147,764 ($295,527 x 0.50) per year.
[GRAPHIC] [TIFF OMITTED] TR10MY24.094
[[Page 40947]]
4. Burden Estimate Summary
BILLING CODE 4120-01-P
[GRAPHIC] [TIFF OMITTED] TR10MY24.095
[[Page 40948]]
VI. Regulatory Impact Analysis
A. Statement of Need
1. Minimum Nurse Staffing
With respect to the requirements for minimum nurse staffing in LTC
facilities, sections 1819 and 1919 of the Act authorize the Secretary
to issue requirements for participation in Medicare and Medicaid,
including such regulations as may be necessary to protect the health
and safety of residents (sections 1819(d)(4)(B) and 1919(d)(4)(B) of
the Act). Such regulations are codified in the implementing regulations
at 42 CFR part 483, subpart B.
Approximately 1.2 million Americans are residents in LTC facilities
each day with Medicare and Medicaid serving as the payor for most
residents.\96\ As we discussed in detail in detail in sections II. and
III, a large body of quantitative and qualitative research suggests
that adequate nurse staffing is vital for ensuring residents' health
and safety. More specifically, there is a positive association between
the number of hours of care that a resident receives each day and
resident health and safety.97 98 99 Research also suggests
that there is a relationship between inadequate staffing and nursing
staff burnout, which can lead to high employee turnover.\100\ High
employee turnover, in turn, can lead to lower continuity of resident
care.
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\96\ https://data.cms.gov/summary-statistics-on-use-and-payments/medicare-service-type-reports/cms-program-statistics-medicare-skilled-nursing-facility.
\97\ Ochieng, N., Chidambaram, P., Musumeci, M. Nursing Facility
Staffing Shortages During the COVID-19 Pandemic. Apr 04, 2022.
Kaiser Family Foundation. Accessed at https://www.kff.org/coronavirus-covid-19/issue-brief/nursing-facility-staffing-shortages-during-the-covid-19-pandemic/.
\98\ Harrington, C., Carrillo, H., Garfield, R., Squires, E.
Nursing Facilities, Staffing, Residents and Facility Deficiencies,
2009 Through 2016. Apr 03, 2018. Kaiser Family Foundation. Accessed
at https://www.kff.org/report-section/nursing-facilities-staffing-residents-and-facility-deficiencies-2009-through-2016-staffing-levels/.
\99\ Min A, Hong HC. Effect of nurse staffing on
rehospitalizations and emergency department visits among short-stay
nursing home residents: A Cross-sectional study using the U.S.
Nursing Home Compare database. Geriatr Nurs. 2019 Mar-Apr;40(2):160-
165. doi: 10.1016/j.gerinurse.2018.09.010. Epub 2018 Oct 4. PMID:
30292528.
\100\ Kelly LA, Gee PM, Butler RJ. Impact of nurse burnout on
organizational and position turnover. Nurs Outlook. 2021 Jan-
Feb;69(1):96-102. doi: 10.1016/j.outlook.2020.06.008. Epub 2020 Oct
4. PMID: 33023759; PMCID: PMC7532952.
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During our regular interactions with State Medicaid agencies,
provider groups, and beneficiary advocates, we have observed that all
these interested parties routinely express the concern that chronic
understaffing in LTC facilities is making it difficult for residents to
receive high quality care. Low quality care also has a negative impact
on the Medicare and Medicaid programs, leading to higher spending due
to more hospitalizations and unplanned Emergency Department
visits.101 102 103 The available evidence suggests that
various types of requirements for LTC facility staff could increase the
quality of care in LTC facilities. We also recognize, however, that
staffing in the long-term care sector is still recovering from the
COVID-19 pandemic that saw a large number of employees leave the
sector, leading to concerns about resident access to care. In response
to these concerns, and after evaluating a wide range of research and
stakeholder feedback, we are finalizing a 24/7 on-site RN requirement,
minimum RN and NA HPRD requirements, and a total nurse staffing
requirement or 3.48 HPRD, all of which aim to increase resident safety
and quality of care while preserving resident access to care.
---------------------------------------------------------------------------
\101\ Ochieng, N., Chidambaram, P., Musumeci, M. Nursing
Facility Staffing Shortages During the COVID-19 Pandemic. Apr 04,
2022. Kaiser Family Foundation. Accessed at https://www.kff.org/coronavirus-covid-19/issue-brief/nursing-facility-staffing-shortages-during-the-covid-19-pandemic/.
\102\ Harrington, C., Carrillo, H., Garfield, R., Squires, E.
Nursing Facilities, Staffing, Residents and Facility Deficiencies,
2009 Through 2016. Apr 03, 2018. Kaiser Family Foundation. Accessed
at https://www.kff.org/report-section/nursing-facilities-staffing-residents-and-facility-deficiencies-2009-through-2016-staffing-levels/.
\103\ Min A, Hong HC. Effect of nurse staffing on
rehospitalizations and emergency department visits among short-stay
nursing home residents: A Cross-sectional study using the U.S.
Nursing Home Compare database. Geriatr Nurs. 2019 Mar-Apr;40(2):160-
165. doi: 10.1016/j.gerinurse.2018.09.010. Epub 2018 Oct 4. PMID:
30292528.
---------------------------------------------------------------------------
Specifically, we are requiring that LTC facilities provide RN
coverage onsite 24 hours per day, 7 days a week (24/7 RN). In addition,
we are requiring that they provide a minimum of 0.55 RN and 2.45 NA
HPRD, and 3.48 total nurse staff HPRD. While the 0.55 RN HPRD, 2.45 NA
HPRD, and 3.48 total nurse staff HPRD standards were developed using
case-mix adjusted data sources, the standards themselves will be
implemented and enforced independent of a facility's case-mix. In other
words, facilities must meet the 0.55 RN, 2.45 NA, and 3.48 total nurse
staff HPRD standards, regardless of the individual facility's patient
case-mix. Requiring 24/7 RN and a minimum number of hours of care for
each resident will help protect resident health and safety by ensuring
that all facilities provide a minimal level of staff care to address
residents' health and safety needs. These standards reflect only the
minimum level of staffing required and all LTC facilities must provide
adequate staffing to meet their specific population's needs based on
their facility assessments. In many cases, facilities will need higher
levels of staffing as a result.
2. Medicaid Institutional Payment Transparency Reporting
In response to concerns about the chronic understaffing and low
wages for the institutional workforce (discussed in detail in our
proposed rule at 88 FR 61398 and 61399), we proposed new Federal
reporting requirements that are intended to promote public
transparency. States have a statutory obligation under section
1902(a)(30)(A) of the Act and the quality requirements in section
1932(c) of the Act for services furnished through managed care
organizations (MCOs) (as well as for prepaid inpatient health plans
(PIHPs), under our authority at section 1902(a)(4)), to make Medicaid
payments that are sufficient to enlist enough providers so that high-
quality LTSS are available to the beneficiaries who want and require
such care. We also relied on our authority under section 1902(a)(6) of
the Act, which requires State Medicaid agencies to make such reports,
in such form and containing such information, as the Secretary may from
time to time require, and to comply with such provisions as the
Secretary may from time to time find necessary to assure the
correctness and verification of such reports.
As discussed in section III. of this final rule, we are finalizing
(with some modifications) our proposal to require that State Medicaid
agencies report annually, at the facility level, on the portion of
payments to nursing facility and ICF/IID services that are spent on
compensation for the direct care and support staff workforce.\104\ We
also proposed, and are finalizing, that States make this information
available to the public by posting the information on a website. As
discussed in the proposed rule at 88 FR 61399, we developed the
requirement to focus on compensation because many direct care workers
and support staff earn low wages and receive limited benefits.\105\
Evidence suggests that there is a connection between wages and high
rates of turnover among
[[Page 40949]]
some workers in the institutional workforce.\106\ To develop relevant
policies to support high quality care for Medicaid beneficiaries, we
first need clear, consistent data from States and facilities about the
current percent of Medicaid payments going to the compensation of
direct care workers and support staff. Data regarding the percent of
Medicaid payments going to compensation of direct care workers and
support staff are not currently being reported to CMS.
---------------------------------------------------------------------------
\104\ Throughout this discussion, we use the term ``States'' to
include all States, Washington, DC, and any territories that include
nursing facility services or ICF/IID services in their State plan.
\105\ Campbell, S., A. Del Rio Drake, R. Espinoza, K. Scales.
2021. Caring for the future: The power and potential of America's
direct care workforce. Bronx, NY: PHI https://phinational.org/wp-content/uploads/2021/01/Caring-for-the-Future-2021-PHI.pdf.
\106\ Sharma, H. and Liu, X. Association between wages and
nursing staff turnover in Iowa. Innov Aging. 2022; 6(4): igac004.
Published online 2022 Feb 5. doi: 10.1093/geroni/igac004.
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B. Overall Impacts
We have examined the impacts of this final rule as required by
Executive Order 12866 on Regulatory Planning and Review (September 30,
1993), Executive Order 13563 on Improving Regulation and Regulatory
Review (January 18, 2011), the Regulatory Flexibility Act (RFA,
September 19, 1980, Public Law 96-354), section 1102(b) of the Act,
section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA, March
22, 1995; Pub. L. 104-4), and Executive Order 13132 on Federalism
(August 4, 1999).
Executive Orders 12866 and 13563 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). Executive
Order 14094 (Modernizing Regulatory Review) amends section 3(f)(1) of
Executive Order 12866 (Regulatory Planning and Review). The amended
section 3(f) of Executive Order 12866 defines a ``significant
regulatory action'' as an action that is likely to result in a rule:
(1) having an annual effect on the economy of $200 million or more in
any 1 year (adjusted every 3 years by the Administrator of the Office
of Information and Regulatory Affairs (OIRA) for changes in gross
domestic product), or adversely affect in a material way the economy, a
sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or State, local, territorial, or
Tribal governments or communities; (2) creating a serious inconsistency
or otherwise interfering with an action taken or planned by another
agency; (3) materially altering the budgetary impacts of entitlement
grants, user fees, or loan programs or the rights and obligations of
recipients thereof; or (4) raising legal or policy issues for which
centralized review would meaningfully further the President's
priorities or the principles set forth in this Executive order, as
specifically authorized in a timely manner by the Administrator of OIRA
in each case.
A regulatory impact analysis (RIA) must be prepared for regulatory
actions with significant effects as per section 3(f)(1) ($200 million
or more in any 1 year). Accordingly, we have prepared a regulatory
impact analysis that to the best of our ability presents the costs and
benefits of the rulemaking.
For this final rule, we have calculated the annual cost of the
minimum staffing requirements in table 22 based on hours per resident
day in CY 2021 dollars, assuming the implementation and enforcement of
these hours per resident day requirements as being applied independent
of a facility's case-mix. We estimate that the aggregate impact of the
staffing-related provisions in this rule, which includes a phased-in
implementation of the requirement for 24 hours per day, 7 days per week
RN onsite coverage, the 0.55 RN and 2.45 NA minimum HPRD requirements,
and the 3.48 HPRD total nurse staff requirement will result in an
estimated cost of approximately $53 million in year 1, $1.43 billion in
year 2, $4.38 billion in year 3, with costs increasing to $5.76 billion
by year 10. We estimate the total cost over 10 years will be $43.0
billion with an average annual cost of $4.30 billion.
There is uncertainty about the degree to which LTC facilities would
bear the cost of meeting the minimum staffing and 24/7 RN requirements
and how much of the costs would be passed onto payors (including
Medicaid, Medicare, private insurers, and nursing facility residents).
We expect LTC facilities would generally have 3 possible approaches to
addressing the increased costs associated with the higher staffing
levels: (1) reduce their margin or profit; (2) reduce other operational
costs; and (3) increase prices charged to payors. LTC facilities may
use some combination of these approaches, and those approaches could
vary by facility and over time. These decisions could depend on a
number of factors, including: the current margin levels of a facility;
the cost increase due to the staffing requirements relative to current
costs and revenues; the current level of operational costs; and the
ability to negotiate prices with payors.
With regards to payors, we have facility level data on the
percentage of resident days paid for by Medicaid, Medicare, and other
payors for the estimates in this RIA. We used these data to estimate
the potential share of costs for each payor by weighting each
facility's increased costs by the percentage of resident days paid for
by each payor type. As we show in table 23, the potential Medicaid
share of costs excluding collection of information costs is 67
percent--that is, if all of the costs of the staffing requirements were
passed on to payors, Medicaid could be expected to pay about two-thirds
of the total costs. Similarly, as we show in table 24, the potential
Medicare share of costs is approximately 11 percent of the total costs,
with other payors potentially bearing the other 22 percent of the total
costs. As we note in our analysis below, however, our cost estimates
assume that LTC facilities and not payors will bear the rule's costs.
Additionally, we have estimated in table 21 the economic impact of
the requirement that States report, by facility and by delivery system
(if applicable), on the percentage of Medicaid payments being spent on
compensation for direct care workers and support staff delivering
Medicaid-covered nursing facility and ICF/IID services. Under this
final rule the requirements become effective in 4 years. We estimate an
initial implementation cost of $9,355,472 for years 1 to 4 (resulting
in total initial implementation costs of $37,421,888) and ongoing
annual costs of $18,305,713 per year starting in year 5.
In response to the proposed rule (88 FR 61352-61429), we received
approximately 46,520 total comments, of which more than 16,000 included
comments related to the content of the regulatory impact analysis
related to the minimum staffing standards. Commenters included numerous
individuals who were LTC residents/families/caregivers/staff, industry,
national advocates, national professional organizations, labor unions,
and academic researchers. In this final rule, we provide a summary of
the public comments received and our responses to them, including
relevant changes in the RIA methodology and estimate.
Comment: Many commenters expressed concern about the cost estimates
and the estimates of the number of employees that facilities would need
to hire to meet the proposed requirements, as well as the assumptions
underlying these estimates. Some commenters stated CMS overestimated
the cost of implementing the requirements since it assumed that nursing
homes will retain LPNs/LVNs when the commenters expect that nursing
homes will actually lay off
[[Page 40950]]
LPNs/LVNs and replace them with lower paid NAs to meet the 2.45 NA HPRD
requirement, significantly reducing this requirement's cost. They also
suggested that the cost of meeting the 24/7 RN and 0.55 RN HPRD
requirements would be much lower than estimated since nursing homes
would similarly lay off LPNs/LVNs and replace them with RNs, rather
than maintaining LPN/LVNs at current level. These commenters noted that
the rule's requirement would cost only a small portion of the
industry's revenues and suggested that CMS should implement an even a
higher minimum staffing standard of 4.2 HPRD, with one outside study
showing a 4.2 HPRD requirement including 0.75 RN HPRD, 1.4 license
nurse HPRD, and 2.8 NA HPRD, would cost $7.25 billion annually.
Other commenters stated that CMS underestimated the costs for the
requirements in the proposed rule and the number of nurse staff
necessary to meet the requirements. Several commenters cited high
growth in staff costs for the individual facilities in which they work
or manage over the past few years, especially during the public health
emergency (PHE). Commenters stated that Medicare and Medicaid
reimbursement rates have not kept pace with rising costs. Other
commenters suggested that CMS consider including the cost of using
agency/contract staff in the impact analysis and consider not
increasing staffing minimums but rather mandating the wages that
staffing agencies can charge so that nursing homes are able to succeed
financially. Other commenters stated that CMS used wage labor data from
2019 that is no longer current to what facilities are paying and that
assuming a 2.31 percent increase in real wage rates was underestimating
future wage increases.
Other commenters cited individual analyses they had done of
staffing and cost data, which showed different costs than we estimated
with estimates ranging from $4 billion to $7.1 billion annually. Many
commenters cited an analysis of the proposed rule done by
CliftonLarsonAllen (CLA), which estimated that the proposed 24/7 RN
requirement, 0.55 RN HPRD requirement, and the 2.45 NA HPRD requirement
would cost a total cost of $6.8 billion annually, even with exclusion
of increases in real wage rates and higher wage rates for contract
employees. This analysis also estimated that more RNs and NAs would
need to be hired than what our analysis estimated. A large number of
commenters also cited an analysis done by Leading Age, which estimated
a total cost of $7.1 billion annually.
One commenter indicated that they had been involved with creating
the Leading Age cost estimate and, writing in a personal capacity,
noted that a central reason for the difference in costs was due to
growth in wage rates from 2021 to 2023 and that this $7.1 billion cost
estimate is based on daily rather than quarterly nurse staffing data
from the Payroll Based Journal (PBJ). This commenter also stated that
CMS cost estimates failed to include a provider-based adjustment to
account for the use of contract staff and that our estimated wage
growth of 2.31 percent was too low. They suggested using more recent
Medicare cost data and other wage source data and highlighted the need
for a SNF-specific wage index based on audited cost reports. Finally,
they noted that the cost estimate excludes some nursing homes where
cost or staffing data were unavailable, including nursing homes in Guam
and Puerto Rico, leading to an underestimation of the actual cost.
Other commenters stated that the CMS analysis assumed no costs for
facilities prior to each requirement going into effect and ignored the
potential impact of these costs on Medicare, Medicaid, and non-
Medicare/Medicaid payors.
Response: We appreciate the commenters sharing their insights into
the costs that their facilities have accrued to hire staff in recent
years, as well as the comments highlighting how using differing data
sources, such as contract nursing wage rates, and assumptions, such as
using daily rather than quarterly nurse staffing data from the PBJ,
influence the estimated cost and the number of employees facilities
would need to hire.
We appreciate the commenters sharing their various hiring practices
and information about their costs for hiring nurse staff in recent
years. As we highlighted in the proposed rule through various
breakdowns of the data by state, facility size, geographical location
(rural vs. urban), and whether the facility is certified by Medicare,
Medicaid, or dual certified, the cost for facilities to meet the 24/7
RN and HPRD requirements varies.
We also appreciate the commenters referring us to the CLA and
Leading Age analyses showing an estimated $6.8 billion and $7.1 billion
annual cost, respectively, when the rule is fully in effect and
providing a copy of these analyses. In reviewing these alternative cost
estimates, we have identified key differences between our estimation
strategy and these estimation strategies that appear to have led to
differing estimates and we provide additional information regarding why
we have decided to retain our estimation strategy and model
assumptions.
CLA's $6.8 billion cost estimate indicates that it calculates the
rule's cost using the median, or the wage rate including salaries and
allocated benefits for the single employee who earns middle wage rate,
for each staff type from Medicare cost reports released as of July 2023
using form S-3, Part V, column 5. We would note, however, that column 5
contains the loaded mean, or average wage rate including allocated
benefits for the employee type. For example, for NAs, it contains the
average loaded salaries for all NAs that the facility employs. In light
of this inconsistency, we are unsure how this outside analysis
calculated median wage rate using Medicare cost reports. Calculating
the median hourly wage rate for each nurse staff type requires
obtaining wage data on every NA, LPN/LVN, and RN in every facility, or
alternatively, having each of the more 14,000 nursing homes share the
data for the RN, LPN/LVN, and NA in their facility who earns the middle
wage among all RNs, LPNs/LVNs, and NAs they employ. We do not have
these data and do not know of a source that provides it. As such, we
continue to use the loaded mean hourly wage to calculate costs for the
final rule.
In reviewing the $6.8 billion estimate, the provided documentation
indicates that it is based on wage rates only for employees. In
contrast, our estimate, as well as the Leading Age estimate, calculates
costs based on average hourly wage rates for employees and contractors.
Calculating costs based only on employee wages requires an assumption
that hours that contract employees are currently working would not
count toward the minimum requirements and lead to facilities needing to
hire more staff to meet the requirement. This assumption leads to a
higher cost for meeting the requirements. We would note, however, that
all hours worked by both employees and contract staff count toward the
requirements we are finalizing. In addition, including costs for both
employees and contract staff provides a more accurate picture of the
average hourly wage that each facility is paying to their nurse staff.
As a result, in this final rule, we are maintaining the inclusion of
all nursing hours worked by employees and contract staff to calculate
additional employees needed and continue to use overall average hourly
rates to calculate the cost.
The CLA estimate indicates that the $6.8 billion cost was
calculated based
[[Page 40951]]
on a combination of 2021 and 2022 Medicare cost reports, without
specifying the share of reports that come from each fiscal year. Our
analyses and all costs are measured in FY 2021 US dollars and costs
each year are provided in real 2021 US dollars rather than nominal
dollars. Adjusting for general inflation, $6.8 billion in 2022 Dollars
is approximately $6.3 billion in 2021 US dollars.\107\ For Leading
Age's $7.1 billion annual estimate, the authors indicate that it is
based on 2023 US dollars, which they calculate by increasing costs from
the 2021 cost reports by 13 percent to account for inflation. In 2021
US dollars this would similarly be $6.3 billion.
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\107\ Federal Reserve Bank of Minneapolis. Inflation Calculator.
Accessed February 26, 2024. https://www.minneapolisfed.org/about-us/monetary-policy/inflation-calculator.
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In reviewing the CLA's $6.8 billion estimate, the authors indicated
that using Q1 2023 PBJ data, nearly 80 percent of nursing homes would
need to hire staff to meet the 24/7 RN requirement based on daily data.
Our review of Nursing Home Care Compare data from March 2023, however,
shows that for the facilities for which RN hours per day data are
available, only 24.5 percent of facilities, or 3,578 facilities, would
need to hire RNs using the following formula: Total RN Hours per
Resident Day = Reported RN Staffing Hours per Resident Day x Average
Number of Residents per Day. The same analysis of Nursing Home Care
Compare data from January 2024 similarly shows that only 22.1 percent,
or 3,202 facilities would need to hire RNs to meet this requirement.
For Leading Age's $7.1 billion cost estimate, one commenter, writing in
a personal capacity, indicated that they were involved in calculating
this estimate and that the higher cost came by analyzing daily, rather
than quarterly, data from the PBJ. While there may be days within a
particular quarter where a nursing home that meets the requirements
overall based on quarterly data did not meet it on an individual day,
we estimate that they would reallocate their existing staffing
resources to ensure compliance with the rule on a continual basis and
to reflect resident census changes. As such, we disagree with the
estimate that nearly 80 percent of nursing homes would need to hire
staff to meet the 24/7 RN requirement. Our analysis estimates that only
22.2 percent of nursing homes would need to hire staff to meet the 24/7
RN requirement. We also assume that they would reallocate staff hours
during the week to meet the 0.55 RN, 2.45 NA, and 3.48 total nurse
staff HPRD requirements.
We appreciate the comment about adjusting the cost based on the
share of contract staff that a facility uses and taking into
consideration the need to use contract staff to meet the requirements.
We also appreciate the comment about taking into account facilities for
which there are no salary or staffing data. As we have noted above, all
cost estimates calculate facility wage rates for each nurse type based
on wages for both employee and contract staff in each nurse (RNs, LPNs/
LVNs, and NAs) type. With regards to missing facilities, we note that
our analysis includes data from all available facilities where there
was staffing information available in the October 2021 Nursing Home
Compare dataset. This included 14,688 facilities out of 15,270
facilities, or approximately 96.1 percent (14,688/15,270). We believe,
therefore, that the cost estimate would remain similar even if these
additional nursing homes, for which staffing data were unavailable,
were included in the analysis. We are, however, adding additional
language in the detailed economic analysis below to clarify that wages
are based on costs for both contract staff as well as employees, as
well as to clarify how we imputed any missing data.
We appreciate the commenters feedback on expected increase in wage
rates for nurse staff. We note that all cost estimates are provided in
2021 US dollars and the growth in wage rates we use, are real wage rate
growth. That is, the estimates take into account annual inflation and
assume that wages are meaningfully increasing above inflation. Over 10
years, we are estimating a nearly 23 percent increase in real wage
rates. We note that between 2001 and 2017, a 16-year period, real wage
rates for nurses increased by only 9.92 percent.\108\ Reviewing Bureau
of Labor Statistics data for more recent years also suggests that our
estimated increase is reasonable. Between 2019 and 2022, average hourly
nominal wages for NAs increased from $14.77 to $17.41, or 17.8 percent,
while average hourly nominal wages for RNs increased from $37.24 to
$42.80, or 7.6 percent. Taking into account inflation, however, real
wages increased by approximately 3 percent for NAs and declined by 0.37
percent for RNs. As such, we believe that our estimate of a 23 percent
increase in real wage rates for nurse staff in 10 years does not
underestimate growth in wage rates and we maintained this wage rate
increase as cited in the proposed rule. In addition, we continue to use
cost data from 2021 Medicare cost reports since our analysis provides
all costs in 2021 US dollars addressing concerns that more recent wage
data would provide a higher cost estimate in 2021 US dollars.
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\108\ Barry J. Real wage growth in the U.S. health workforce and
the narrowing of the gender pay gap. Human Resources for Health.
2021;19: 105. doi: 10.1186/s12960-021-00647-3.
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We appreciate the opportunity to provide clarification regarding
costs that facilities may incur to hire staff prior to each
requirement's effective date since facilities will likely start hiring
staff to meet the requirements before the effective date. In the
proposed rule, as well as this final rule, the cost estimates for each
requirement includes costs that facilities may incur in the year before
each requirement going into effect as they hire employees in
anticipation of the requirement. For example, in the proposed rule, we
proposed that for facilities located in urban areas, the 24/7 RN
requirement would go into effect 2 years after the date of publication.
This means that these facilities would be required to meet the
requirement starting 2 years, or 24 months, from the date of
publication. In the cost analysis, both in the proposed rule, as well
as this final rule, however, we included costs for facilities to meet
the 24/7 RN requirement during all of year 2 (12-24 months) after the
date of publication, or 1 year before the requirement went into effect.
We included costs for facilities prior to the requirement date to
acknowledge that facilities will likely need to hire RNs for this
requirement before 2 years after the date of publication, rather than
instantaneously hiring them 2 years after the date of publication. We
appreciate the commenter bringing this issue to our attention and have
provided this clarification below in the detailed economic analysis.
Finally, we acknowledge that costs could in theory be much lower
than we estimated if, as suggested by some commenters, facilities
transitioned away from LPNs/LVNs when hiring nurses to meet the
proposed requirements. We would note, however, that there are
transition costs of hiring and firing that have not been quantified. We
would also note that facilities have the option to use any nurse staff
type, including LPNs/LVNs, to meet the 3.48 total nurse staff HPRD
requirement included in the final rule, which would reduce any
incentive to transition from LPNs/LVNs to NAs and our intent is for
facilities already meeting the minimum staffing requirements not to
scale down or adjust staffing types as a result of this rule. As such,
we believe that there is a low likelihood that facilities will
[[Page 40952]]
transition away from LPNs/LVNs to meet the requirements in this rule
and of course, expect that facilities will not lay off staff necessary
to serve patients with their existing case mix. We do not believe that
we could accurately predict facility behaviors with respect to LPNs/
LVNs. Due to the role that LPNs/LVNs can play in meeting the 3.48 HPRD
requirement and the related reduced likelihood of nursing homes ending
employment of LPNs/LVNs in light of this policy change, it would
understate the effects of the final rule to attempt to reduce
overestimation of effects of the rule as proposed and thus we have
decided to retain our assumption that facilities will retain LPNs/LVNs
at their current level. Given these factors, we are retaining our
estimation methodology as we believe it provides an accurate estimate
of the rule's estimated economic cost. We would note, however, that we
have modified the formula to estimate the cost over 10 years since in
the proposed rule the cost estimate provided for the alternative
policies that we are now finalizing was based on the 3.48 HPRD
requirement going into effect the same time as the 0.55 RN HPRD and
2.45 NA HPRD requirements. Since this final rule requires facilities
located in urban areas to meet the 3.48 HPRD requirement 2 years
following publication of this rule, which is 1 year prior to the
implementation date of the 0.55 RN HPRD and 2.45 NA HPRD requirements,
and for rural facilities to meet the 3.48 HPRD requirement 2 years
prior to the implementation date of the 0.55 RN and 2.45 NA HPRD
requirements, we modified the formula to take into account that nurse
staff hired to meet the 3.48 total nurse HPRD requirement can also
count toward meeting the individual NA requirement that will be
implemented in future years. We detail these changes below in the
detailed economic analysis section.
Comment: Multiple commenters provided feedback on other effects
apart from increased costs and the need to hire new nurse staff that
would emerge from the staffing requirements. Some commenters said that
nursing homes may lay off non-nurse staff members and cut resident
activities, such as bingo night, which contribute to patients' quality
of life, to fund the requirements since nursing homes are already
struggling financially with the rising costs of inflation, food,
insurance, and an already increased payroll. One commenter stated that
the rule may also increase operating expenses more generally. Other
commenters expressed concern that without additional Medicare and
Medicaid funding, which varies by state, the rule could result in
access to care issues, especially in rural and underserved communities.
Specifically, commenters noted that the staffing requirements' costs
could lead some facilities to close and other facilities to limit the
numbers of residents they admit due to insufficient nurse staff to
accept more residents. Commenters stated that this effect would likely
be higher for nursing homes with a larger share of residents utilizing
Medicaid, which are more likely to need to hire staff to meet one or
more of the requirements, as well as nursing homes in rural areas that
may have difficulty attracting nurse staff or contract employees.
Commenters noted that for some rural communities, the closure of
facilities could have far reaching impacts on the community leading
individuals to leave or forcing nurse home employees to commute long
distance to other cities for work, negatively impact the local economy
and community life. Commenters suggested analyzing potential bed losses
due to the rule, which in turn, could have adverse effects on hospitals
who would be unable to discharge patients, leaving them with less space
for new patients and increasing the government's cost for patients
whose care was covered by Medicare or Medicaid. Commenters also
suggested it could have a negative impact on other health care
facilities, such as inpatient rehabilitation facilities, which could
see greater struggles to find nursing home bed space for their
patients. Commenters noted that facility closures could lead residents
to be placed further away from the families negatively impacting their
overall well-being, or alternatively, nursing homes could pass on the
cost to consumers reducing consumers' savings and leading them to use
Medicaid. Commenters also suggested that nursing homes may stop
accepting patients using Medicaid due to low reimbursement rates,
negatively impacting patients who utilize Medicaid.
Other commenters challenged the idea that the rule will be a burden
for facilities. They stated that many facilities are diverting funds
away from resident care and toward corporate profits. As such,
commenters suggested that CMS should not assume that facilities will
have challenges meeting the staffing standard and additional actions
should be taken to create transparency regarding facility spending.
Some commenters expressed concern that phasing-in the nurse staffing
requirements would negatively impact patients and staff members,
specifically that phasing-in the requirements means a delay in improved
quality of care for residents negatively affecting their health,
safety, and quality of life. Commenters also suggested that low
staffing levels will lead to continued employee burnout, making them
more likely to quit resulting in increased difficulty for facilities to
meet the requirements. Finally, multiple commenters noted that the rule
does not include increased Medicare or Medicaid reimbursement rates for
nursing home residents and that current reimbursement rates have not
kept pace with rising costs in recent years. These commenters said that
Medicaid reimbursement rates should be increased to ensure access to
care and to pay staff a wage that can support a family. Other
commenters noted that there is wide variation in Medicaid reimbursement
rates across states and asked CMS to consider how this variation will
impact facilities' ability to meet the requirements. Finally, some
commenters said that they would be forced to hire agency staff at an
inflated cost with no guarantee of quality care or positive patient
outcomes.
Response: We appreciate the thoughtful and insightful comments
regarding additional effects that could emerge from the staffing rule.
CMS requires facilities to provide appropriate staffing and
extracurricular activities to ensure the highest quality of care for
residents in accordance with resident assessment, care plans, and
resident preferences (see existing requirements at Sec. 483.24(c)). In
developing this rule, we sought to ensure resident health and safety
while also maintaining access to care. While CMS agrees with commenters
highlighting that phasing-in the requirements could lead to a delay in
residents receiving higher quality care, as well as continued staff
burnout, these effects are difficult to quantify and must be balanced
with challenges associated with more rapid implementation of these
requirements. As such, we have maintained our regulatory approach that
phases in the different staffing requirements over 5 years.
Taken broadly, access to care comments addressed two main issues:
finding sufficient staff and the cost for hiring staff. According to
the U.S. Bureau of Labor Statistics, in 2022 there were 3,072,700 RNs
in the United States.\109\ As finalized, the rule would
[[Page 40953]]
require the hiring of approximately 16,000 RNs to meet both the 24/7 RN
requirement and the 0.55 RN HPRD requirement. This is approximately 0.5
percent of all non-self-employed RNs in the labor force. HRSA's
National Center for Health Workforce Analysis uses a Health Workforce
Simulation Model to project the supply and demand for health workers,
including RNs.\110\ The National Center projects a 10 percent shortage
of RN in 2026 and 2031, that will be reduced to 9 percent by 2036.\111\
Projected supply adequacy of RNs varies considerably across States,
ranging from a shortage of 29 percent in Georgia to a projected 42
percent oversupply in North Dakota in 2036.
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\109\ U.S. Bureau of Labor Statistics. Occupational Employment
and Wages, May 2022: 29-1141 Registered Nurses. Accessed February
26, 2024. https://www.bls.gov/oes/current/oes291141.html.
\110\ Department of Health and Human Services, Health Resources
and Services Administration, Health Workforce Projections. Available
at https://data.hrsa.gov/topics/health-workforce/workforce-projections. April 2024.
\111\ Nurse Workforce Projections, 2021-2036 (hrsa.gov) https://bhw.hrsa.gov/sites/default/files/bureau-health-workforce/data-research/nursing-projections-factsheet.pdf. March 2024.
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Hiring necessary for facilities to meet the NA HPRD requirement
will represent a larger portion of NAs available nationwide, and this
rule has taken three steps to minimize the impact on access to care and
to prevent the closure of facilities due to inadequate staff
availability.
The first is to allow facilities located in areas with nurse staff
shortages to apply for an exemption from the staffing requirements.
Facilities located in areas with nurse staff shortages, as defined in
the regulatory text at Sec. 483.35(h), are eligible for exemptions
that include: an 8-hour per day exemption from the 24/7 RN requirement,
an exemption from the 0.55 RN HPRD requirement, an exemption from the
2.45 NA HPRD requirement, and an exemption from the 3.48 total nurse
staff HPRD requirement. These exemptions could reduce both the rule's
cost as well as the number of nurse staff needed helping to ensure
continued access to care. Based only on being located in an area with
nurse staff shortage, a preliminary analysis of the data suggests that
more than 29 percent of facilities would be eligible for an 8-hour
exemption from the 24/7 RN requirement and the 0.55 RN HPRD
requirement, 23 percent of facilities would be eligible for an
exemption from the 2.45 NA HPRD requirement, and 22 percent of
facilities would be eligible for an exemption from the total nurse
staff requirement. Among rural facilities, more than 67 percent of
facilities would be eligible for an 8-hour exemption from the 24/7 RN
requirement and a total exemption from the 0.55 RN HPRD requirement, 19
percent would be eligible for an exemption from the 2.45 NA HPRD
requirement, and 40 percent would be eligible for an exemption from the
3.48 total nurse staff HPRD requirement. Since facilities would also
need to meet all other requirements to obtain an exemption, however,
these numbers are not reflective of the number of facilities estimated
to fully qualify for the exemptions as they only describe the number of
facilities that would satisfy the workforce availability criterion.
Second, CMS is launching an initiative to provide over $75 million in
financial incentives, such as scholarships and tuition reimbursement,
to make it easier for nurses to enter careers in nursing homes. CMS is
also exploring the potential to provide additional technical assistance
to LTC facilities regarding staffing through the Quality Improvement
Organizations. Finally, rather than requiring facilities to immediately
meet the staffing requirements, we have taken a phased-in approach to
the requirements to help ensure that an adequate workforce is available
and to reduce the cost. For facilities located in urban areas, the
requirements will be phased in over 3 years. Specifically, these
facilities will have 2 years to comply with the 3.48 total nurse HPRD
and the 24 hours per day, 7 days a week RN requirement and have 3 years
to comply with the 0.55 RN and 2.45 NA HPRD requirements. For
facilities located in rural areas, requirements will be phased in over
5 years. Specifically, these facilities will have 3 years to comply
with the 3.48 total nurse HPRD and the 24 hours per day, 7 days per
week RN requirement and will have 5 years to comply with the 0.55 RN
and 2.45 NA HPRD requirements. While we view the exemptions and the
phasing in of the nurse staff requirements as necessary to ensure
access to care, we acknowledge that they do come with negative effects
for residents and staff. Specifically, exemptions and phasing in of the
individual staffing requirements will result in residents residing in
nursing homes, which are not currently meeting these requirements, in
receiving either less nurse care or a longer delay in receiving the
full hours of care per day. Similarly, nursing home staff may
experience a heavier workload, leading to higher burnout. As such, we
believe that there will be minimum negative impact on workforce
availability throughout the care continuum, minimal impact on nursing
home bed availability, and minimal increased costs for Medicare and
Medicaid due to hospitals being unable to discharge patients.
We note that Medicare and Medicaid payment rates for nursing home
care are outside the scope of this rule. With regards to a SNF-specific
wage index, we refer commenters to the text regarding this issue and
its feasibility on page 61411 in the proposed rule (88 FR 61410).
Specifically, we note that section 315 of the Medicare, Medicaid, and
SCHIP Benefits Improvement and Protection Act of 2000 (BIPA) (Pub. L.
106-554, enacted December 21, 2000) gave the Secretary the discretion
to establish a geographic reclassification procedure specific to SNFs,
but only after collecting the data necessary to establish a SNF PPS
wage index that is based on wage data from nursing homes. To date, this
has proven to be unfeasible due to the volatility of existing SNF wage
data and the significant amount of resources that would be required to
improve the quality of the data. More specifically, auditing all SNF
cost reports, similar to the process used to audit inpatient hospital
cost reports for purposes of the IPPS wage index, would place a burden
on providers in terms of recordkeeping and completion of the cost
report worksheet. Adopting such an approach would require a significant
commitment of resources by CMS and the Medicare Administrative
Contractors (MACs), potentially far in excess of those required under
the IPPS, given that there are nearly five times as many SNFs as there
are IPPS hospitals. We continue to believe that the development of such
an audit process could improve SNF cost reports in such a manner as to
permit us to establish a SNF-specific wage index, but we do not believe
this undertaking is feasible at this time (88 FR 53212).
Finally, while some commenters have questioned whether agency
contract staff will increase quality care or positive patient outcomes
and said that they may be forced to hire any available staff to meet
the requirement, we would note that all nurse staff are required to
meet applicable state requirements to be a nurse and are able to have a
positive impact on patient health and quality of care. We would
continue to encourage facilities to ensure that they are utilizing
contract staff in a manner that best improves patient care. In
addition, all other requirements governing LTC facilities continue to
apply, and we expect facilities to deliver safe and high-quality care
to all residents, regardless of the employment arrangement that nursing
home use to procure staff.
Comment: A few commenters, including the Small Business
Administration's Office of Advocacy, suggested that CMS erroneously
certified that the rule will not have a
[[Page 40954]]
significant economic impact on a substantial number of small entities
and is violating the Regulatory Flexibility Act (RFA), which requires
agencies to analyze options for regulatory relief of small entities, if
a rule has a significant impact on a substantial number of small
entities. Specifically, commenters pointed to an outside analysis by
CLA estimating that the rule's actual annual cost will be closer to
$6.8 billion when all requirements are in effect and when compared to
revenues for skilled nursing facilities (NAICS 6231) and intellectual
and developmental disabilities facilities (NAICS 6232) from the 2017
Economic Census, would exceed the 3 to 5 percent threshold that HHS
qualifies as economically significant. They also noted that the CMS
should have included other LTC facilities that rely on nurses in the
RFA certification. These include residential mental health and
substance abuse facilities (NAICS 62322), Continuing Care Retirement
Communities and Assisted Living Facilities for the Elderly (NAICS
6233), Continuing Care Retirement Communities (NAICS 623311), Other
Residential Care Facilities (NAICS 62399), and Services for the Elderly
and Person with Disabilities (NAICS 62412). Finally, they noted that
costs should have been analyzed on a per small entity basis to make it
easier to understand the rule's true impact.
Response: We appreciate the comments provided. We have discussed in
detail in our comment response above regarding our estimated cost, and
why we think that our estimate provides a more accurate calculation of
the likely cost, and henceforth, are using it as the basis for our
conclusion. In summary, the higher estimate from CLA uses median wages
for nursing homes, which are not data that are publicly available and
do not appear on Medicare cost reports, it does not appear to include
hours worked by contract employees in the estimates, and it calculates
costs in 2022 US dollars while we calculate costs in 2021 US dollars.
Meanwhile, the higher estimate from Leading Age appears to calculate
costs based on daily nurse staff levels and assumes that nursing homes
would not reassign staff to different days in the week to meet the
requirements and provides estimates in 2023 US dollars. We would also
note that while one commenter indicated the wages from the CLA estimate
were from 2023 when wages were higher, this is not the case. Rather, as
the CLA document provided indicates, this $6.8 billion cost estimate is
based on a combination of facility wage data from 2021 and 2022. We
believe that they confused the Leading Age and CLA estimates.
The rule also includes exemptions for facilities that are located
in areas with nurse staff shortages that would allow facilities to
receive an 8 hour a day exemption from the 24/7 RN requirement, as well
as exemptions from the 0.55 RN HPRD requirement, the 2.45 NA
requirement, and the 3.48 total nurse staff HPRD requirement. These
exemptions could reduce both the rule's cost as well as the number of
staff that will need to be hired and thus help supported continued
access to care. Given these changes in the requirements, we maintain
our certification that this final rule will not have a significant
economic impact on a substantial number of small entities and do not
analyze options for regulatory relief of small entities beyond the
exemptions we have already finalized in this rule.
With regards to the per facility analysis, we would note that the
proposed rule provided multiple per facility cost analyses for
facilities needing staff by state that include costs for (1) rural
compared to urban facilities, (2) facilities of different sizes (<50
beds, 50 to 100 beds, and >100 beds, and (3) Medicare, Medicaid, and
Dual Acceptance Status. We would also note that analyzing the cost on a
per facility basis would lead to the same percentage as we have
estimated, since costs were calculated based on all facilities.
We appreciate some commenters noting that our estimates of share of
revenues were based on 2017 dollars that do not take into account cost
increases. Therefore, to more accurately, estimate the estimated costs
as a share of revenues, we take into account increases in the Consumer
Price Index to more accurately measure annual revenues, which results
in annual revenues rising to approximately $179 billion in 2021 US
dollars. We also appreciate the suggestion to include other long term
care facilities that rely on nurses in the analysis. We believe,
however, that the impact on these other facility types would be minimal
since the requirements of this rule do not apply to these other
facility types. Moreover, we would note that including these additional
facility types, with the exception of ``other residential care
facilities'' that do not utilize significant amounts of nursing staff,
in the analysis would increase total revenues for affected industries
to approximately $275 billion in 2021 US dollars, which would not
change the analysis that the rule does not have a significant economic
impact on a substantial number of small entities.
Comment: A few commenters expressed concern that CMS erroneously
certified that the rule did not violate the Unfunded Mandates Reform
Act (UMRA) since Tribal governments own nursing homes that this rule
would affect.
Response: We recognize that Tribal governments own nursing homes,
as do states and local governments. As we have noted in the regulatory
impact analysis for the proposed rule, this rule does not require
Tribal governments to provide additional financial resources to meet
any of the staffing requirements in this rule. As such, we maintain our
certification that the rule will not impose new requirements for Tribal
governments.
Comment: A few commenters stated that CMS violated Federal law by
not engaging in meaningful discussion or consult with Tribes before
releasing the proposed regulation that affects tribally operated
nursing homes in Indian Country. They indicate that CMS seems to have
ignored detailed comments that Tribal leaders and the CMS Tribal
Technical Advisory Group (TTAG) submitted in response to CMS' Request
for Information last year.
Response: Consistent with the CMS Tribal Consultation Policy, CMS
seeks the guidance of Tribal leaders on the delivery of health care for
American Indians/Alaska Natives (AI/AN) served by the Marketplace,
Medicare, Medicaid, Children's Health Insurance Program, or any other
health care program funded by CMS. We believe that we have followed the
CMS Tribal Consultation Policy by engaging in meaningful discussions on
this regulation that affects tribally-operated nursing homes. CMS
reviewed and took into consideration all comments provided in the FY
2023 SNF PPS RFI, including those comments specific to the impact of
any staffing rule on Tribal nursing homes. As we outlined in the
proposed rule, we held two listening sessions on June 27, 2022, and
August 29, 2022, to allow all stakeholders, including those with
concerns about the impact that a staffing standard will have on
tribally-owned nursing homes, the opportunity to provide feedback on
the approach utilized for establishing a minimum staffing standard (88
FR 61364). In addition, we attended the CMS Tribal Technical Advisory
Group (TTAG) quarterly meeting on October 18-19, 2023, to provide an
overview of the NPRM and respond to questions and comments from the
TTAG. We encouraged the TTAG to submit written comments as outlined in
the proposed
[[Page 40955]]
rule and we have reviewed and considered those comments in issuing this
final rule. Consistent with the government-to-government relationship,
CMS is available to continue its dialogue with Tribal governments and
the CMS TTAG and to provide technical assistance as needed in the
implementation of this rule impacting Tribal nursing homes.
Comment: One commenter noted that they believe that this policy has
federalism implications and should be subject to applicable federalism
requirements since the proposed rule is intended to and would preempt
the applicability of any State or local law providing for a maximum
staffing level, to the extent that such a State or local maximum
staffing level would prohibit a Medicare and Medicaid certified LTC
facility from meeting the minimum HPRD ratios and RN coverage levels.
They also note that facilities would be required to meet applicable
state and Federal staffing laws and that CMS failed to consult with
state agencies and other organizations in violation of section 3(b) of
Executive Order 13132.
Response: As we noted in the federalism analysis section, to the
extent Federal standards exceed State and local law minimum staffing
standards, no Federal pre-emption is implicated because facilities
complying with Federal law would also be in compliance with State law.
We are not aware of any State or local law providing for a maximum
staffing level. This final rule, however, is intended to and would
preempt the applicability of any State or local law providing for a
maximum staffing level, to the extent that such a State or local
maximum staffing level would prohibit a Medicare, Medicaid, or dually
certified LTC facility from meeting the minimum HPRD requirements and
RN coverage levels finalized in this rule or from meeting higher
staffing levels required based on the facility assessment provisions
finalized in this rule. As we outlined in the proposed rule (88 FR
61364), we held two listening sessions on June 27, 2022, and August 29,
2022, to allow all stakeholders, including state agencies and other
organizations to voice their concerns about the impact that a staffing
standard, and took into consideration comments provided by state
agencies.
C. Detailed Economic Analysis
1. Impacts for LTC Minimum Staff Requirement
a. Nursing Services (Sec. 483.35)
We are finalizing two changes to the existing requirements for
Nursing Services for LTC facilities at Sec. 483.35. We are requiring
facilities to provide RN coverage onsite 24 hours per day, 7 days a
week and to meet a minimum staffing standard of 0.55 RN, 2.45 NA, and
3.48 HPRD for total nurse staffing. We note that these estimates do not
include adjustments for any exemptions that we may provide, which could
reduce the rule's cost (including cost associated with potential LTC
facility closure or reduction in patient load capacity per facility)
and benefits, based on the frequency of exemptions.
(1). RN Onsite 24 Hours a Day, 7 Days a Week (24/7 RN)
To estimate the cost to the industry of full implementation of the
requirement that a facility have an RN on site 24 hours a day, 7 days a
week (24/7 RN), we first summed the current annual RN salary cost for
each facility. We then subtracted this amount from the estimated annual
RN salary cost that the facility will incur to meet the new
requirement.
To measure the current RN staff cost to the industry, we estimated
the total number of RNs currently employed in LTC facilities and their
loaded respective labor wages using data from the 2022 Nursing Home
Staffing Study, which has information on 14,688 LTC facilities. This
study uses the 2021 SNF--Medicare Cost Report data set to find the
total facilities, the total number of reported LTC specific RNs and
their loaded mean annual salaries, defined as salary and fringe
benefits. Specifically, we calculated mean hourly wages for both
employees and agency staff by using Column 3 in Worksheet S-3, Part V
and dividing it by the sum of reported paid hours for RNs using data
from Column 4 in Worksheet S-3, Part V.\112\ For nursing homes with
missing or extreme values for hourly wages, we imputed the wage rate
based on the state-level weighted hourly wage of non-outlier nursing
homes within the state. Using this dataset, we were able to estimate
the aggregate RN loaded salary costs and the cost per facility,
including the cost for contract RNs.
---------------------------------------------------------------------------
\112\ The cost report data utilized were from October 18, 2022,
and are available at https://www.cms.gov/httpswwwcmsgovresearch-statistics-data-and-systemsdownloadable-public-use-filescostreportscost/2021-1.
---------------------------------------------------------------------------
To estimate the RN cost per resident census, we used the October
2021 Care Compare data set that calculates average hours per resident
day (HPRD) for RNs using the PBJ System data from 2021 Q2. Hours per
resident day is defined as the average hours of RN care that each
resident in the facility receives per day. For example, a facility that
has an average HPRD of 0.5 for RNs would provide, on average, 0.5 hours
(30 minutes) of RN care for each resident. We linked this dataset using
the facility unique ID variable with the 2021 SNF--Medicare Cost Report
data set to create a complete dataset. Using this combined dataset, we
were also able to view the impact by resident census as well as the
impact by LTC facility characteristics such as facility ownership, bed
size, Five-Star Quality Rating System staffing ratings, payer mix, and
location. This complete dataset helped provide an understanding of
which types of LTC facilities would bear the largest cost burden of a
new Federal 24/7 RN requirement.
For each facility, we first calculated the total number of hours
each day that an RN is on site by multiplying the average RN hours per
resident day by the average number of residents in the facility (daily
hours of RN care = RN HPRD x Residents in Facility). We then estimated
the number of additional hours of RN care that facility would need to
meet the 24/7 RN requirement by subtracting the current daily hours of
RN care from 24 hours (additional daily RN hours needed = 24 - current
daily hours of RN care). We then calculated the total number of
additional RN hours needed per year by multiplying this amount by 365
(additional yearly RN hours needed = additional daily RN hours needed x
365). Finally, we estimated each facility's yearly cost for meeting the
requirement by multiplying the total number of the yearly hours needed
by the loaded hourly wage (yearly 24/7 RN cost = additional yearly RN
hours needed x facility RN wage rate).
For example, if a facility had an average of 0.4 RN HPRD and had 50
residents it would provide 20 hours of total RN hours per day (0.4 HPRD
x 50 residents = 20 total RN hours per day). To meet the 24/7 RN
requirement, this facility would have to increase its total RN hours
per day by 4 hours (24 hours needed - 20 hours current RN care = 4
hours needed) and 1,460 hours (4 hours per day x 365 days/year)
annually. Using the loaded mean hourly wage cost of $44 per hour, this
facility would spend $64,240 per year ($44 x 4 RN hours per day x 365
day per year = $64,240) to be in compliance with the 24/7 RN
requirement.
After estimating each facility's cost for meeting the 24/7 RN
requirement, the next step was to sum the additional cost for all LTC
facilities to meet the 24/7 RN requirement for an aggregate cost to the
industry of $349 million per year. We also found approximately 78
percent of LTC facilities had 24/7 RN coverage
[[Page 40956]]
within a 90-day window based on PBJ System data from 2021 Q2, showing
that they provided at least 24 hours of RN care per day. We assumed
this estimate for all quarters, for an annual estimate of approximately
22 percent (100 percent - 78 percent = 22 percent) or 3,261 LTC
facilities (0.222 x 14,688 LTC facilities = 3,261 LTC facilities) that
would need to increase their RN staffing to comply with the 24/7 RN
requirement. Among this 22 percent of facilities needing to increase RN
staffing, there was an average of 0.43 hours of RN care per resident
day.
Table 15 summarizes the average annual cost for LTC facilities to
meet the 24/7 RN Staffing Requirement over a 10-year period, which
includes any associated collection of information costs as described in
section IV. In estimating the cost, we take into account expected
growth in wages that will result from greater demand for RNs in LTC
facilities to meet the proposed 24/7 RN requirement, as well as the
0.55 RN hours per resident day requirement that we discuss in more
detail later in the analysis. All costs are reflected in 2021 US
dollars.
There is uncertainty about how much RN wages will change over the
next 10 years due to changes in demand for RNs emerging due to both
this final rule, as well as broader patterns of healthcare use in the
United States. A 2009 study \113\ examined minimum licensed nurse (RN/
LPN) staffing standards in California for acute care hospitals that
went into effect in March 2004. The authors found that compared to
metropolitan areas outside of California that did not have the
regulation, RN wage growth in California increased 12.8 percent more
between 2000 and 2006. A more recent study \114\ found that real nurse
wage rates increased by nearly 10 percent between 2001 and 2017, with
changes in rates varying during years of U.S. economic growth and
recession. During its strongest growth between 2001 and 2004, real
wages increased at an average rate of 2.41 percent annually. Given the
uncertainty in growth and increased demands for RNs, we assumed that
real wages each year will increase at 2.31 percent.
---------------------------------------------------------------------------
\113\ Mark B, Harless DW, and Spetz J. California's Minimum-
Nurse Staffing Legislation and Nurses' Wages. Health Affairs.
2009;28 Supplement 1, w326-w334. doi: 10.1377/hlthaff.28.2.w326.
\114\ Barry J. Real wage growth in the U.S. health workforce and
the narrowing of the gender pay gap. Human Resources for Health.
2021;19: 105. doi: 10.1186/s12960-021-00647-3.
---------------------------------------------------------------------------
We provide separate cost estimates for facilities in rural and
urban areas since facilities in rural areas would have to meet the
requirement 3 years after the final rule publication. Facilities in
urban areas, in contrast, would need to meet the requirement 2 years
after the final rule publication. This resulted in an average annual
cost of approximately $366 million in 2021 US dollars without
considering exemptions.
[GRAPHIC] [TIFF OMITTED] TR10MY24.096
(2) RN on Site 24 Hours a day, 7 Days a Week (24/7 RN)--State Level
Analysis
To provide a more in-depth understanding of the financial and
staffing effects of the 24/7 RN requirement, we examined its impact for
different groups of LTC facilities in each State, as well as Washington
DC and Puerto Rico. We first assessed how many full-time RNs LTC
facilities will need to hire to meet the finalized requirement. In this
analysis, we defined a full-time employee as an employee who worked
1,950 hours per year. This definition was based on a full-time employee
working 5 days per week, 8 hours per day, with a 30-minute break (37.5
hours/week x 52 weeks/year). To meet the 24/7 RN requirement, each
facility will need to provide a minimum of 8,760 hours (24 hours/day x
365 days) of RN care annually since we did not include any facility
exemptions in these calculations. All calculations used the October
2021 Nursing Home Care Compare data set that provides each nursing
home's average daily resident census and HPRD for RNs using the PBJ
system data for 2021 Q2.
For each facility, we first calculated the total number of full-
time RNs in the facility using the following formula: (facility
specific RN HPRD x average daily resident census x 365)/1,950. For
example, if a facility has 100 residents and provides an average of 0.2
RN HPRD, then during the year, it will provide a total of 7,300 hours
of RN care (0.2 RN HPRD x 100 residents x 365 days = 7,300 hours)
yearly and have 3.74 full-time RNs. We then calculated the number of
additional full-time RNs needed by subtracting the total hours of RN
care that the facility currently provides yearly from the 8,760 hours
needed to ensure 24/7 RN coverage and dividing by 1,950, which is the
number
[[Page 40957]]
of hours of yearly care provided by a full-time RN. Continuing with our
example in this section, the nursing home will need to provide 1,460
additional RN hours per year (8,760 hours-7,300 hours = 1,460 hours)
and hire 0.75 additional full-time RNs.
Table 16 shows the total number of RNs currently employed by LTC
facilities in each State's urban and rural areas, the number of full-
time RNs that LTC facilities will need to hire, and the percent
increase in RNs that LTC facilities in each State will need to meet the
proposed minimum staffing standard barring any exemptions. Oklahoma
will need the largest increase in RNs in percentage terms for rural
facilities, needing to increase the size of its RN workforce by 27
percent. Meanwhile, for urban facilities, the largest percentage
increase in RNs will be in Louisiana at 17.6 percent. Facilities in
Texas will need to hire the most overall RNs with the State needing 653
additional full-time RNs. Across the United States, however, the number
of RNs that facilities will need to meet the requirement varies widely
with several States, including Florida and Illinois, needing to
increase the size of their LTC facilities' RN labor force by less than
1 percent.
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[[Page 40958]]
[GRAPHIC] [TIFF OMITTED] TR10MY24.099
We then assessed the financial cost for facilities to implement the
24/7 RN requirement. To estimate the yearly cost per State, we used the
formulas described in section VI.C.1.(a) of this rule to first estimate
each facility's yearly cost to meet the requirement. We also assumed
that LTC facilities exceeding the minimum requirements for RNs will not
reduce RNs to the minimum required level or lay off other staff to
reduce costs. We then calculated the average cost per resident day by
summing the total cost of meeting the requirement for all facilities in
the State and dividing it by the total number of resident days for all
facilities needing additional RNs. We estimated the average cost per
resident day only for facilities needing staff to provide a more
complete picture of the burden that the rule will impose on these
facilities.
Table 17 provides the yearly Statewide cost to implement the
requirement, as well as the average cost per resident day for
facilities in rural and urban areas that will need to hire additional
staff to meet the requirement. Delaware has the highest cost per
resident day with a single facility that is not meeting the 24/7 RN
requirement and will need to spend $87.45 per resident day. The highest
overall cost occurs in Texas where facilities will need to collectively
spend more than $84 million to meet the minimum staffing requirement.
The cost also varied across urban and rural areas. In New Hampshire,
LTC facilities in urban areas that need staff will need to spend an
average of $8.95 per resident day to meet the requirement, while in
Hawaii, Puerto Rico, and Wyoming these facilities will occur no cost.
Nevada will have the highest average cost for rural LTC facilities at
$21.81 per resident day.
[[Page 40959]]
[GRAPHIC] [TIFF OMITTED] TR10MY24.100
[[Page 40960]]
[GRAPHIC] [TIFF OMITTED] TR10MY24.101
Table 18 shows the average cost per resident day to implement the
requirement for facilities in each State that will need additional RNs,
dividing facilities based on their size into three groups: less than 50
beds, 50 to 100
[[Page 40961]]
beds, and more than 100 beds. Within each group of LTC facilities, the
cost varied widely by number of beds and State. In West Virginia, the
average cost per resident day for facilities that have more than 100
beds and need additional RNs will be $0.72, while in North Carolina,
the average cost per resident day for facilities with fewer than 50
beds will be $29.19.
[[Page 40962]]
[GRAPHIC] [TIFF OMITTED] TR10MY24.102
[[Page 40963]]
[GRAPHIC] [TIFF OMITTED] TR10MY24.103
In table 19, we calculated the average cost by State for facilities
needing staff to meet the minimum staffing requirement based on whether
the facility accepted patients with Medicare, Medicaid, or both
Medicare
[[Page 40964]]
and Medicaid. The highest per resident day cost will be for 14
Medicaid-only facilities in Illinois that will need to spend an average
of $29 per resident day to meet the staffing requirement. The lowest
per resident day cost for facilities needing staff will be for a single
Medicaid-only facility in South Dakota that will need to spend $0.33
per resident day to meet the requirement.
[[Page 40965]]
[GRAPHIC] [TIFF OMITTED] TR10MY24.104
[[Page 40966]]
[GRAPHIC] [TIFF OMITTED] TR10MY24.105
BILLING CODE 4120-01-C
[[Page 40967]]
(3). Minimum Nurse Staffing Requirement of 3.48 Total Nurse Staffing
HPRD, 0.55 RN HPRD, and 2.45 NA HPRD
To estimate the incremental impact of the minimum nurse staffing
requirement requirements of 2.45 NA HPRD, 0.55 RN HPRD, and 3.48 total
nurse staffing HPRD, we first estimated the industry's aggregate annual
cost for nurse staff (RNs, LPNs/LVNS, and NAs) at current staffing
levels. We then estimated the aggregate annual cost for nurse staff
(RNs, LPNs/LVNs, and NAs) for all facilities to meet these
requirements. We note that these HPRD requirements are applied
independent of a facility's individual case-mix, meaning the expected
costs to a facility are based solely on the cost of facilities adding
additional staff to meet these requirements, regardless of the
facility's case-mix. Finally, we calculated the requirements' expected
cost to the industry by subtracting the industry's current nurse staff
cost from the estimated nurse staff cost for all facilities to meet the
minimum requirements (Nurse Staff Cost for All Facilities to Meet
Minimum Requirement--All Facilities' Current Nurse Staff Cost).
To measure the current nurse staffing cost to the industry, we
estimated the total number of nurse staff currently employed in LTC
facilities and their loaded respective labor wages. This study used the
2021 SNF--Medicare Cost Report dataset to find the total of facilities,
the total number of reported LTC specific nurse-type staff and their
loaded mean annual salaries, defined as salary and fringe benefits.
Using this dataset, we were able to estimate the aggregate total nurse
staffing salary costs and the cost per facility, including the cost for
contract staff.
To estimate the nurse staffing cost by staff type, that is, RNs,
LPNs/LVNs, NAs, per resident census we used the October 2021 Care
Compare data set that calculates average hours per resident day (HPRD)
for each nurse type using the PBJ System data from 2021 Q2. Hours per
resident day was defined as the average hours of care that each
resident in the facility receives from that nurse type. For example, a
facility that had an average HPRD of 0.5 for RNs would provide, on
average, 0.5 hours (30 minutes) of RN care for each resident. We linked
this dataset using the facility unique ID variable with the 2021 SNF--
Medicare Cost Report data set to create a complete dataset. Using this
combined dataset, we were also able to view the impact by staff type
per resident census as well as the impact by LTC facility
characteristics such as facility ownership, bed size, Five-Star Quality
Rating System staffing ratings, payer mix, and location. This complete
dataset helped provide an understanding of which types of LTC
facilities would bear the largest cost burden of a new Federal minimum
staffing requirement.
Using the above dataset, we estimated each facility's current total
annual salary costs for each nurse type (RN, LPN/LVN, NA) as follows:
[facility specific nurse type] loaded hourly wage x [facility specific
nurse type] reported HPRD x facility-level average daily facility
resident census x 365. For example, if a facility reported an average
loaded hourly wage of $44 for its RNs, an average of 0.4 RN HPRD, and
an average daily resident census of 100, its estimated annual salary
costs for RNs would be calculated as: $44 x 0.4 x 100 x 365 = $642,400.
Taking this example further, if this same facility reported a loaded
average hourly wage of $21 for its NAs, an average of 2.1 NA HPRD, and
an average daily resident census of 100, its estimated annual salary
costs for NAs would be calculated as: $21 x 2.1 x 100 x 365 =
$1,609,650. If this facility only employed RNs and NAs as part of its
total nurse staff, then the facility's current total nurse staff cost
would be $2,252,050 ($642,400 + $1,609,650 = $2,252,050). To estimate
the aggregate current nurse staff cost across all facilities, the next
step was to sum all facilities' current total (RN, LPN/LVN, and NA)
nurse staff cost for an overall industry nurse staff cost of $43.4
billion.
c. 3.48 Total Nurse Staffing Requirement
To estimate the cost of the 3.48 total nurse staffing HPRD
requirement, we subtracted the total current nurse staffing cost per
facility from the total nurse staffing cost per facility with the 3.48
total nurse staffing HPRD standard. For the purpose of the cost
estimates, we continue the assumption stated in the proposed rule that
facilities would hire NAs to meet the total nurse staffing requirement.
The formula applied to calculate each facility's cost of meeting of
meeting the requirement was: [[3.48 total nurse staffing HPRD] -
[facility specific reported total nurse staffing HPRD]] x facility
specific NA hourly wage x facility level average daily resident census
x 365. Using the same LTC facility example from the paragraph above
where the facility had an average of 0.4 RN HPRD and 2.1 NA HPRD, this
LTC facility would have a total of 2.5 (0.4 + 2.1 = 2.5) total nurse
staffing HPRD. To comply with the requirement, it would need to
increase its NA HPRD from 2.1 to 3.08 adding an additional 0.98 (3.48 -
2.5 = 0.98) HPRD. The cost for this requirement on this facility would
thus be $751,170 ([3.48 - 2.5] x $21 x 100 x 365) = $751,170).
When LTC facilities hire RNs to meet the 24/7 RN requirement, which
goes into effect the same year as the 3.48 total nurse staffing HPRD
requirement, the hours these RNs work will also count toward the 3.48
total nurse staffing HPRD requirement. To avoid overestimating the
number of nurse staff that LTC facilities will need to hire to meet the
3.48 total nurse staffing requirement and the cost to hire them, if a
LTC facility has less than 3.48 total nurse staff HPRD, we subtracted
any staff hours that the facility will need to meet the 24/7 RN
requirement up to the point where the LTC facility will meet the 3.48
total nurse staff HPRD requirement.
After accounting for any increase in RN hours per resident day to
meet the 24/7 RN requirement, we then calculated the total number of
additional hours per resident day of nurse care that LTC facilities
would need to provide to meet the 3.48 HPRD total nurse staff
requirement. We did this calculation by subtracting the total nurse
staff hours (RN, LVN/LPN, and NA) provided from 3.48 using the
following formula: [3.48 - (RN HPRD + LVN/LPN HPRD + NA HPRD)]. For any
facilities that were below the 3.48 total nurse staff HPRD requirement,
we assumed that they would hire NAs to fulfill any remaining hours.
Once we apply this formula to each facility in our dataset, we
summed each facility's total cost to obtain the requirement cost to the
industry of approximately $1.37 billion. To factor in the 2.31 percent
increase in real increase in wage rates and the different timeline for
rural and urban facilities to meet these requirements, in table 20 we
provide the estimated cost annually and over 10 years. Overall, we
estimate that the requirement will cost an average of approximately
$1.36 billion annually and $13.64 billion over 10 years.
[[Page 40968]]
[GRAPHIC] [TIFF OMITTED] TR10MY24.106
c. Minimum Nurse Staffing Requirement of 0.55 RN and 2.45 NA HPRD
When LTC facilities hire RNs to meet the 24/7 RN requirement, which
goes into effect before the 0.55 RN HPRD requirement, the hours these
RNs work will also count toward the 0.55 RN HPRD requirement. To avoid
overestimating the number of RNs that LTC facilities will need to hire
and the cost to hire them, if a LTC facility meets the 0.55 RN HPRD
requirement with current staff including RNs hired for the 24/7 RN
requirement, we estimate that its cost is $0. For facilities that still
need to hire RNs to meet the 0.55 RN HPRD requirement we calculate
costs using the following formula: [[0.55 RN HPRD] - [facility specific
RN HPRD + facility specific RN HPRD resulting from 24/7 RN
requirement]] x facility specific RN hourly wage x facility level
average daily resident census x 365. Similarly, When LTC facilities
hire NAs to meet the 3.48 total nurse staff HPRD requirement, which
goes into effect before the 2.45 NA HPRD requirement, the hours these
NAs work will also count toward the 2.45 NA HPRD requirement. To avoid
overestimating the number of NAs that LTC facilities will need to hire
and the cost to hire them, if a LTC facility meets the 2.45 NA HPRD
requirement when including NAs hired to meet the 3.48 total nurse staff
HPRD requirement, we estimate that its cost is $0. For facilities that
still need to hire NAs to meet the 2.45 NA HPRD requirement we
calculate costs using the following formula: [[2.45 NA HPRD] -
[facility specific NA HPRD + facility specific NA HPRD resulting from
3.48 total nurse staff requirement]] x facility specific NA hourly wage
x facility level average daily resident census x 365.
In table 21, we provide the estimated cost annually and over 10
years for the 0.55 RN and 2.45 NA HPRD requirements. These requirements
have a total cost of approximately $2.54 billion annually and $25.38
billion over 10 years.
[GRAPHIC] [TIFF OMITTED] TR10MY24.107
[[Page 40969]]
Table 22 summarizes the estimated total cost for the comprehensive
minimum nurse staffing requirement which includes any associated
collection of information costs as described in section IV., Collection
of Information Requirements, but not the regulatory review costs which
we discuss in more detail later in this section. To account for real
growth in RN and NA wages over time, for each requirement we continue
to assume that real wages for nurse staff, as well as collection of
information costs, will increase at 2.31 percent annually. Since rural
and urban LTC facilities have different phase-in periods to meet the
24/7 RN and 3.48 total nurse staff HPRD requirement (2 years for
facilities in urban areas and 3 years for facilities in rural areas)
and the 0.55 RN and 2.45 NA HPRD requirements (3 years for facilities
in urban areas and 5 years for facilities in rural areas) we provided
separate cost estimates for facilities located in each area. Over a 10-
year period, we anticipate an average annual cost of approximately $4.3
billion.
We would note that the estimated $21.9 billion cost for the 0.55 RN
and 2.45 NA HPRD requirements over 10 years differs from the estimated
cost of $36.9 billion in the proposed rule. The reason for this
difference is that with the 3.48 HPRD total nurse staff requirement,
NAs hired to meet the requirement will also count toward the 2.45 NA
HPRD requirement. As such, a large part of this cost difference is
reflected in the calculated costs for the 3.48 total nurse staffing
requirement.
BILLING CODE 4120-01-P
[[Page 40970]]
[GRAPHIC] [TIFF OMITTED] TR10MY24.108
BILLING CODE 4120-01-C
This final rule does not include any provisions requiring Medicare,
Medicaid, or other non-Medicare/Medicaid payors to increase payment
[[Page 40971]]
rates to providers to meet any or all the expected costs of these
finalized requirements. Below, however, we provide estimates of how
much of the estimated cost is due to residents whose care is covered by
three payor groups: Medicaid, Medicare, and other non-Medicare/Medicaid
payors.
Table 23 provides annual estimates and a 10-year total estimate for
the share of facilities' increased staffing costs that is due to
residents utilizing Medicaid. These estimates exclude all collection of
information costs. Over a 10-year period, the average annual cost for
facilities' due to residents whose stay is paid for by Medicaid is
approximately $2.82 billion. If Medicaid were to fully cover these
costs (although there is no expectation that it will), then States
would pay approximately $1.17 billion, and the Federal Government would
pay $1.65 billion.
To build these estimates, we used a scenario where each facility's
increased cost to meet the new minimum staffing and 24/7 RN
requirements for residents utilizing Medicaid is equal to share of
residents in the facility using Medicaid. More formally, we first
calculated each facility's increased staffing cost for residents
utilizing Medicaid for each of the four requirements (24/7 RN, 3.48
total nurse staff, 0.55 RN HPRD, and 2.45 NA HPRD) using the following
formula: Increased Facility Cost for Medicaid Residents = Individual
requirement cost x % facility residents covered by Medicaid. We then
summed all facilities' increased costs that is due to residents
utilizing Medicaid and took into account the different timeline for
each of the requirements to obtain a total estimated cost for Medicaid
of $28.17 billion over 10 years.
BILLING CODE 4120-01-P
[[Page 40972]]
[GRAPHIC] [TIFF OMITTED] TR10MY24.109
Table 24 provides annual estimates and a 10-year estimate for the
share of facilities' increased staffing costs that is due to residents
whose care is covered by Medicare and other non-Medicare/Medicaid
payors. These estimates
[[Page 40973]]
continue to exclude all collection of information costs. Over a 10-year
period, facilities' average annual cost to meet the proposed
requirements will be approximately $471 million for residents utilizing
Medicare and $921 million for residents utilizing other non-Medicare/
Medicaid payors.
To build these estimates, we used a scenario where the cost each
facility will incur to meet the new minimum staffing and 24/7 RN
requirements for residents utilizing Medicare is equal to the share of
residents covered by Medicare and non-Medicare/Medicaid payors in each
facility. More formally, we first calculated each facility's increased
staffing cost for residents utilizing Medicare and other non-Medicare/
Medicaid payors for each of the four requirements (24/7 RN, 3.48 total
nurse staff, 0.55 RN HPRD, and 2.45 NA HPRD) using the following
formula: Increased Facility Cost for Medicare Residents = Individual
requirement cost x % facility residents covered by Medicare. We then
summed all facilities' increased costs that is due to residents
utilizing Medicare and took into account the different timeline for
each of the requirements to obtain a total estimated cost to facilities
for Medicare-covered SNF stays of $4.71 billion over 10 years.
To obtain the total cost due to residents utilizing other non-
Medicare/Medicaid payors, we first calculated each facility's increased
staffing cost for residents utilizing other non-Medicare/Medicaid
payors for each of the four requirements (24/7 RN, 3.48 total nurse
staff HPRD, 0.55 RN HPRD, and 2.45 NA HPRD) using the following
formula: Increased Facility Cost for Non-Medicare/Medicaid Payors =
Individual requirement cost x % facility residents covered by non-
Medicare/Medicaid Payors. We then summed all facilities' increased
costs that is due to residents utilizing other Non-Medicare/Medicaid
payors and took into account the different timeline for each of the
requirements to obtain a total estimated cost of $9.21 billion over 10
years.
[[Page 40974]]
[GRAPHIC] [TIFF OMITTED] TR10MY24.110
BILLING CODE 4120-01-C
Sources of uncertainty about the cost estimate for the 24/7 RN,
3.48 Total Nurse Staffing HPRD, 0.55 RN and 2.45 NA HPRD requirements
include:
[[Page 40975]]
The cost estimates assumed that LTC facilities needing RNs and/or
NAs to meet these requirements will hire them without laying off other
direct care or support staff. Some research,115
116 however, has found that when States implemented minimum
hour per day requirements for direct care staff (RNs, LPNs, and NAs),
LTC facilities responded by reducing indirect care staff, such as
housekeeping, food service, and activities staff. If LTC facilities
respond to the 24/7 RN, 3.48 total nurse staff HPRD, 0.55 RN HPRD, and
2.45 NA HPRD requirements in similar ways, then a facility's total cost
for the requirements could decline significantly relative to what was
presented above (see earlier discussion about appropriate accounting of
costs depending on consistency between benefit and cost analytic
approaches). The intent of this rule, however, is that facilities will
maintain levels of indirect care staff necessary to meet their
residents' needs, while also scaling up direct care staff if needed to
meet the minimums.
---------------------------------------------------------------------------
\115\ Thomas, Kali S., Kathryn Hyer, Ross Andel, and Robert
Weech-Maldonado. The Unintended Consequences of Staffing Mandates in
Florida Nursing Homes: Impacts on Indirect-Care Staff, 2010,
Medicare Care Research and Review, Volume 67, Issue 5, Pages 555-
573.
\116\ Bowblis, John R., and Kathryn Hyer. Nursing Home Staffing
Requirements and Input Substitution: Effects on Housekeeping, Food
Service, and Activities Staff, 2013, Health Services Research,
Volume 48, Issue 4, Pages: 1539-1550.
---------------------------------------------------------------------------
The cost estimates assumed that real wages for RNs and NAs will
grow at a real annual rate of 2.31 percent due to increasing demand for
these direct care staff. Differences in demand for RNs and NAs across
geographical areas, however, could lead to wages in different areas to
increase at different rates, altering the cost for LTC facilities.
The cost estimates assumed that the nursing home resident
population will remain stable over the next 10 years. There is some
evidence, however, that the resident population is declining. CMS Care
Compare data shows that between February 2017 and February 2024, the
average number of residents in nursing homes per day declined from
1,346,712 residents to 1,207,726.\117\ If the resident population
continues to decrease, then the costs could be lower than what we have
estimated. Similarly, if the pattern changes and the nursing home
resident population increases, costs could be higher than what we have
estimated.
---------------------------------------------------------------------------
\117\ CMS. (2024). Nursing homes including rehab services
archived data snapshots. Accessed March 19, 2024. Available at:
https://data.cms.gov/provider-data/archived-data/nursing-homes.
---------------------------------------------------------------------------
The 24/7 RN cost estimate assumed that RNs hired to meet the
requirement will make the loaded average hourly rate for RNs in the
facility. If, however, LTC facilities need to hire RNs to work
overnight shifts, which typically command a higher hourly rate, the
costs for LTC facilities to meet this requirement could increase.
The cost estimate for the 3.48 total nurse staff requirement
assumes that facilities will hire NAs to fill the necessary hours. If,
however, they hire LPNs/LVNs, then the cost could increase since LPNs/
LVNs command a higher hourly wage than NAs.
The cost estimate assumed that no LTC facilities will obtain
exemptions from the 24/7 RN requirement, the 3.48 total nurse staffing
HPRD requirement, or the 0.55 RN and 2.45 NA HPRD requirements,
although some facilities could obtain exemptions. Depending on the
number of facilities that obtain exemptions from the requirements and
their expected cost to meet the requirements, the total cost of the
rule for LTC facilities could be lower than what is estimated.
In addition to uncertainty about the magnitude of costs, there is
uncertainty about whether LTC facilities or other payors would bear the
cost of meeting the minimum staffing and 24/7 RN requirements. As we
highlighted earlier in this RIA, we expect that LTC facilities would
generally have 3 possible approaches to addressing the increased costs
associated with the higher staffing levels: (1) reduce their margin or
profit; (2) reduce other operational costs; and (3) increase prices
charged to payors. LTC facilities may use some combination of these
approaches, and those approaches could vary by facility and over time.
These decisions could depend on a number of factors, including: the
current margin levels of a facility; the cost increase due to the
staffing requirements relative to current costs and revenues; the
current level of operational costs; and the ability to negotiate prices
with payors. If payors did increase payment rates to meet some or all
the rule's cost, the cost for LTC facilities could be lower relative to
what is estimated above.
(4). Impact of 3.48 Total Nurse Staff, 0.55 RN, and 2.45 NA HPRD
Requirements on States
To provide a more in-depth understanding of the financial and
staffing effects of the 3.48 total nurse staff HPRD, 0.55 RN HPRD, and
2.45 NA HPRD minimum staffing requirements, we examined their impact on
different groups of LTC facilities in each State, as well as
Washington, DC, and Puerto Rico. We first assessed how many full-time
employees LTC facilities will need to hire to meet the finalized
requirements. In this analysis, we defined a full-time employee as an
employee who worked 1,950 hours per year. This definition was based on
a full-time employee working 5 days per week, 8 hours per day, with a
30-minute break (37.5 hours/week x 52 weeks/year).
We continued to assume that no facilities will obtain exemptions
from these minimum staffing requirements. For the 3.48 total nurse
staff HPRD requirement, we continued to subtract any costs that
facilities will incur and employees they will need to meet the 24/7 RN
requirement since RNs that facilities hire to meet the 24/7 RN
requirement will also count toward the 3.48 total nurse staff HPRD
requirement. For the 0.55 RN HPRD requirement, we continue to subtract
any costs that facilities will incur and employees they will need to
hire to meet the 24/7 RN requirements since RNs that facilities hire
for the 24/7 RN requirement will also count toward the 0.55 RN HPRD
requirement. Finally, for the 2.45 NA HPRD requirement, we continue to
subtract any NAs hired to meet the 3.48 total nurse staff requirement
since NAs that facilities hire for the 3.48 total nurse staff
requirement will also count toward the 2.45 NA HPRD requirement. All
calculations used the October 2021 Care Compare data set that provided
each LTC facility's average daily resident census and average HPRD for
RNs, LPNs/LVNs and NAs using the PBJ System data from 2021 Q2.For each
facility, we first calculated the total number of full-time RNs, LPN/
LVNs, and NAs working in a facility using the following formula:
(facility specific care type HPRD x Average daily resident census x
365)/1,950. For example, if a facility has 10 residents and provides an
average of 0.1 RN HPRD, then during the year, it will provide a total
of 365 hours of RN care (0.1 RN HPRD x 10 residents x 365 days) yearly
and have 0.187 full-time RNs. We then calculated the number of
additional RNs needed by subtracting the current average hours per
resident day for RNs from the minimum required RN hours per resident
day. Continuing with our example in this section and assuming the
facility did not need to hire any RNs to meet the 24/7 RN requirement,
the LTC facility would need to provide 1,642.5 additional RN hours per
year ([0.55 RN HPRD - 0.1 HPRD] x 10 residents x 365 days = 1642.5
hours) and hire 0.84 additional full-time RNs.
To calculate the total number of additional NAs needed to meet the
3.48
[[Page 40976]]
total nurse staff requirement, we subtracted the current average hours
per resident day for all nurse staff (RNs, LPNs/LVNs, and NAs) from the
minimum required hours per resident day. For example, if the same
facility as previously mentioned with 10 residents provided an average
of 2.2 NA HPRD, 0.187 RN HPRD, and no LPN/LVN HPRD, then to meet the
3.48 HPRD requirement it would need to provide 3,989.5 additional NA
hours per year ([3.48 Total Nurse Staff HPRD-2.2 NA HPRD-.187 RN HPRD]
x 10 residents x 365 days = 3,989.5 hours) and hire 2.05 (3,989.5 hours
needed/1,950 hours yearly per full-time employee) full-time NAs. This
equals an average increase of 1.09 NA HPRD (3,989.5/10 residents/365
days = 1.09 HPRD). We note, however, that facilities may also wish to
use other types of staff such as LPNs/LVNs to meet the total staffing
standard.
Finally, to calculate the total number of additional NAs needed to
meet the 2.45 NA HPRD requirement, we added together the current
average hours per resident day for NAs and the average additional hours
per resident day that NAs will work to meet the 3.48 total nurse staff
requirement. We then subtracted this new total NA HPRD from the 2.45 NA
HPRD minimum required hours per resident day. For example, the same
facility that we discussed above would provide a total of 3.29 NA HPRD
(2.2 HPRD from current average NA HPRD + 1.09 HPRD from the 3.48 total
nurse staff requirement = 3.29 NA HPRD). Therefore, it would have
already met the 2.45 NA HPRD requirement and would incur no additional
costs and would not need to hire any NAs to meet the 2.45 NA HPRD
requirement.
Table 25 shows the total number of RNs and NAs employed by LTC
facilities in each State's urban areas, the number of full-time RNs and
NAs that LTC facilities will need to hire to meet each requirement, and
the percent increase in RNs and NAs that LTC facilities in each State
will need to meet the proposed minimum staffing standards. Table 26
provides the same information for LTC facilities located in each
State's rural areas.
Louisiana will need the largest increase in RNs in percentage
terms. The number of full-time RNs in urban LTC facilities will need to
increase by nearly 96 percent, while rural LTCs will need to increase
the number of RNs by more than 73 percent to meet minimum standard.
Facilities in Texas will need to hire the most overall RNs with the
State needing 1,615 additional full-time RNs in urban areas and more
than 311 RNs in rural areas. Across the United States, however, the
number of RNs that facilities will need to hire varies widely, with
several States, including Delaware and Hawaii, not needing to hire any
RNs to meet the requirement.
Illinois will need the largest percentage increase for NAs in urban
areas to meet the 3.48 total nurse staff requirement. The State will
need to add 4,350 full-time NAs and increase the overall number of NAs
working in LTC facilities by more than 31 percent. Similar to RNs,
however, there is wide variation in the percentage increase in NAs
needed for the 3.48 total nurse staff requirement across States. For
example, Alaska, North Dakota, the District of Columbia, Delaware,
Florida, Hawaii, Idaho, Florida, Maine, and Vermont, will need to
increase the size of their NA labor force in urban LTC facilities by
less than 1 percent to meet the requirement.
Delaware will need the largest percentage increase for NA in urban
areas to meet the 2.45 NA HPRD requirement, increasing the number of
NAs by 18.3 percent. For rural areas, Georgia will need the largest
percentage increase at 19.5 percent. Across States, however, the number
of NAs that facilities will need to hire continues to vary widely.
BILLING CODE 4120-01-P
[[Page 40977]]
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[[Page 40978]]
[GRAPHIC] [TIFF OMITTED] TR10MY24.112
[[Page 40979]]
[GRAPHIC] [TIFF OMITTED] TR10MY24.113
[[Page 40980]]
[GRAPHIC] [TIFF OMITTED] TR10MY24.114
We then assessed the financial cost for facilities to implement the
3.48 total nurse staff, 0.55 RN, and 2.45 NA HPRD minimum staffing
requirements. To estimate the yearly cost per State, we used the
formulas described in section
[[Page 40981]]
VI.C.1.(a) to first estimate each facility's yearly cost to meet each
requirement. We also assumed that LTC facilities exceeding the minimum
requirements for total nurse staff, RNs and/or NAs will not reduce
staff to the minimum required level or lay off other staff to reduce
costs. We then calculated the average cost per resident day by summing
the total cost of meeting each requirement for all facilities in the
State and dividing it by the total number of resident days for all
facilities in the state needing to hire staff to meet the requirements.
We estimated the average cost per resident day only for facilities
needing staff to provide a more complete picture of the burden that the
rule will impose on these facilities.
Table 27 provides the yearly Statewide cost to implement the 3.48
total nurse staff, 2.45 NA, and 0.55 RN HPRD requirements, as well as
the average cost per resident day for facilities in rural and urban
areas that will need to hire staff to meet the requirements. Facilities
in Illinois that are not meeting the minimum staffing standards will
need to spend the most with an average cost of $21.01 per resident day.
The highest overall cost occurs in New York where facilities will need
to collectively spend nearly $421 million to meet the minimum staffing
requirements. The cost also varies across urban and rural areas. In
Illinois, LTC facilities in urban areas that need staff will need to
spend an average of $22.34 per resident day to meet the requirement,
while in Florida, they will need to spend than $5.25 per resident day.
Virginia had the highest average cost for rural LTC facilities at
$17.65 per resident day.
[[Page 40982]]
[GRAPHIC] [TIFF OMITTED] TR10MY24.115
[[Page 40983]]
[GRAPHIC] [TIFF OMITTED] TR10MY24.116
Table 28 shows the average cost per resident day for facilities in
each State that need additional staff, dividing facilities based on
their size into three groups: less than 50 beds, 50 to 100 beds, and
more than 100 beds. Within
[[Page 40984]]
each group of LTC facilities, the cost varied widely by the number of
beds and State. In Oklahoma, the average cost per resident day for
facilities that have fewer than 50 beds and need additional nurse will
be $1.84, while in Illinois, the average cost per resident day for
facilities with more than 100 beds will be $22.78.
[GRAPHIC] [TIFF OMITTED] TR10MY24.117
[[Page 40985]]
[GRAPHIC] [TIFF OMITTED] TR10MY24.118
In table 29, we calculated the average cost by State for facilities
needing staff to meet the minimum staffing requirements based on
whether the facility accepted patients with Medicare, Medicaid, or both
Medicare and Medicaid. The highest per resident day cost will be for 14
Medicaid-only facilities in North Dakota that will need to spend an
average of $42.48 per resident day to meet the staffing requirements.
The lowest per resident day cost for facilities needing staff will be
for two Medicare-only facilities in West Virginia that will need to
spend $0.59 per resident day to meet the requirements.
[[Page 40986]]
[GRAPHIC] [TIFF OMITTED] TR10MY24.119
[[Page 40987]]
[GRAPHIC] [TIFF OMITTED] TR10MY24.120
BILLING CODE 4120-01-C
b. Benefits of LTC Minimum Staff Requirement
Evidence in the literature suggests that higher staffing is
associated with better quality of patient care and patient health
outcomes.118 119 120 While many of these benefits are
difficult to quantify, research suggests a positive correlation between
higher RN HPRD and more community discharges, as well as fewer
hospitalizations and emergency department visits that result in
significant savings for Medicare. An example of such evidence comes
from the 2022 Nursing Home Staffing Study that analyzes the Medicare
savings that are likely to result from different case-mix adjusted RN
hours per resident day (HPRD) requirements.
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\118\ Cai, S., Yan, D., & Intrator, O. (2021). COVID-19 cases
and death in nursing homes: The role of racial and ethnic
composition of facilities and their communities. Journal of the
American Medical Directors Association, 22(7), 1345-1351.
\119\ Harris, J.A., Engberg, J., & Castle, N.G. (2020).
Organizational and geographic nursing home characteristics
associated with increasing prevalence of resident obesity in the
United States. Journal of Applied Gerontology, 39(9), 991-999.
https://doi.org/10.1177/07464819843045 https://doi.org/10.1177/07464819843045.
\120\ Min, A., & Hong, H.C. (2019). Effect of nurse staffing on
rehospitalizations and emergency department visits among short-stay
nursing home residents: A cross-sectional study using the U.S.
Nursing Home Compare database. Geriatric Nursing, 40(2), 160-165.
https://doi.org/10.1016/j.g.
---------------------------------------------------------------------------
The study first used the PBJ system, which contains data on daily
hours worked by RNs, and data from the Minimum Data Set (MDS) on
resident acuity and the number of residents in the facility, to
calculate the acuity-adjusted RN HPRD for 14,140 LTC facilities based
on data from 2022 Q2.\121\ We would note, as discussed above, that
while the benefits described in this section were calculated on the
basis of acuity-adjusted data, the minimum staffing requirements being
finalized in this rule will be applied independent of an individual
facility's case-mix. We understand that this may impact the
comparability of the benefits described in this section to those which
may occur with the finalization of these requirements, but we also
believe that the acuity adjusted data more accurately reflect that
which is publicly reported through Care Compare and the PBJ System.
Registered nurses included RNs, RNs with administrative duties, and RN
directors of nursing. The 2022 Study then used Nurse Home Compare Data
from 2021 Q2 to 2022 Q1 to examine the impact of different RN staffing
levels on five claims-based measures: short-stay hospital readmission,
short-stay emergency department (ED) visits, long-stay hospitalizations
per 1,000 long-stay resident days, long-stay ED visits per 1,000 long-
stay resident days, and the rate of successful return to home or
community. More specifically, the study ran a multivariate regression
model that used the 1st and 2nd RN staffing decile as the reference
group and included the 3rd through the 10th deciles of RN staffing as
covariates in the model. The model also includes several additional
covariates that take into account LTC facility specific characteristics
that include: (1) facility size (number of certified beds), (2)
ownership type (for-profit, non-profit or government owned), (3)
whether the facility is located in a rural area, (4) the facility's
Medicaid population quartile, (5) whether the facility is hospital-
based, (6) the facility's status in the Special Focus Facility Program,
and (7) whether the facility is part of a continuing care retirement
community. The study then used the model coefficients to identify the
mean outcomes that were associated with each staffing level above the
1st and 2nd RN staffing deciles.
---------------------------------------------------------------------------
\121\ In the study, appendix E, section E.1.1 provides details
on the criteria used for the acuity adjustment.
---------------------------------------------------------------------------
After identifying the mean outcome rate for each of the five
measures that was associated with each staffing level, they compared it
to the adjusted mean outcome rate for each facility to the rate the
facility would have if it met the minimum required RN staffing level.
For those facilities above the minimum RN staffing level, the study
assumed that facilities would maintain their current RN staffing level.
Based on the facility's number of short-stay residents, as well as
long-stay resident days, the study then estimated the total savings at
the facility level. To measure costs savings for Medicare, the study
used an average estimated cost of $20,400 per hospitalization, $2,500
per ED visit, and for community and home discharge, the reduction in
the number of Medicare-covered SNF days multiplied by the average daily
payment amount. Using these criteria, the study estimates that a
minimum RN requirement of between 0.52 and 0.60 HPRD would result in
$318,259,715 in annual Medicare savings.\122\
---------------------------------------------------------------------------
\122\ Abt Associates. (2022). Nursing Home Staffing Study
Comprehensive report. Page 110. Report prepared for the Centers for
Medicare & Medicaid Services. https://edit.cms.gov/files/document/nursing-home-staffing-study-final-report-appendix-june-2023.pdf.
---------------------------------------------------------------------------
Given that our final RN HPRD level is 0.55 we consider this amount
to be our best estimate of the rule's financial benefits. There are
also likely to be cost savings for Medicaid due to fewer
hospitalizations and emergency department visits, although the 2022
Nursing Home Staffing Study did not quantify them. Additionally, while
the savings estimate above reflects an acuity-adjusted standard, given
variability in acuity across facilities, we believe that these savings
estimates
[[Page 40988]]
provide guidance on the impact of applying the minimum staffing
requirements independent of a facility's case-mix.
Table 30 provides the estimated quantifiable benefits annually and
over 10 years. Since the 0.55 RN HPRD requirement will not go into
effect until Year 3, we estimate no reduction in Emergency Department
visits and hospitalizations, as well as increase in discharges to home
or the community for the first 2 years. Over 10 years, we estimate a
total of approximately $2.55 billion in Medicare cost savings.
[GRAPHIC] [TIFF OMITTED] TR10MY24.121
We expect that the 24/7 RN, 3.48 total nurse staff, and 2.45 NA
HPRD requirements will also bring substantial benefits for residents,
staff and LTC facilities. As we noted in the statement of need for this
regulatory impact analysis, there is a positive association between the
number of hours of care that a resident receives each day and resident
health and safety.123 124 125 The higher staffing standards
we are finalizing and the resultant improvements in quality and safety
will also provide greater assurance to residents' families--an
important, but difficult to quantify, measure.
---------------------------------------------------------------------------
\123\ Ochieng, N., Chidambaram, P., Musumeci, M. Nursing
Facility Staffing Shortages During the COVID-19 Pandemic. Apr 04,
2022. Kaiser Family Foundation. Accessed at https://www.kff.org/coronavirus-covid-19/issue-brief/nursing-facility-staffing-shortages-during-the-covid-19-pandemic/.
\124\ Harrington, C., Carrillo, H., Garfield, R., Squires, E.
Nursing Facilities, Staffing, Residents and Facility Deficiencies,
2009 Through 2016. Apr 03, 2018. Kaiser Family Foundation. Accessed
at https://www.kff.org/report-section/nursing-facilities-staffing-residents-and-facility-deficiencies-2009-through-2016-staffing-levels/.
\125\ Min A., Hong, H.C., Effect of nurse staffing on
rehospitalizations and emergency department visits among short-stay
nursing home residents: A Cross-sectional study using the U.S.
Nursing Home Compare database. Geriatr Nurs. 2019 Mar-Apr;40(2):160-
165. doi: 10.1016/j.gerinurse.2018.09.010. Epub. 2018 Oct. 4. PMID:
30292528.
---------------------------------------------------------------------------
Research also suggests that there is a positive relationship
between inadequate staffing and nursing staff burnout, which can lead
to high employee turnover, and conversely, higher nurse staffing levels
is associated with lower nurse staff turnover rates, suggesting that
higher staffing levels will benefit employees by providing a better
work environment.126 127 LTC facilities are likely to
benefit from the higher staffing levels in the long-term with a
reduction in the number of new staff they will need to hire and train,
and lowered dependence on temporary workers, who often command higher
hourly wages.
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\126\ Kelly, L.A., Gee, P.M., Butler, R.J. Impact of nurse
burnout on organizational and position turnover. Nurs. Outlook. 2021
Jan-Feb;69(1):96-102. doi: 10.1016/j.outlook.2020.06.008. Epub. 2020
Oct 4. PMID: 33023759; PMCID: PMC7532952.
\127\ Donoghue, C. (2010). Nursing Home Staff Turnover and
Retention: An Analysis of National Level Data. Journal of Applied
Gerontology, 29(1), 89-106. https://doi.org/10.1177/0733464809334899.
---------------------------------------------------------------------------
Lower turnover rates will also benefit residents and LTC facility
operators. Higher turnover rates are associated with a variety of
problems in LTC facilities including lower quality of resident care,
worse performance on claims-based quality measures, a greater
likelihood of LTC facilities receiving an infection control deficiency
citation, and more overall survey deficiency citations, while higher
long-term licensed nurse (RN and LPN) retention rates are correlated
with lower 30-day rehospitalization rates and higher nursing assistant
(NA) retention rates are associated with fewer overall deficiency
citations, quality of care deficiency citations, and deficiencies that
pose an immediate jeopardy to resident health or
safety.128 129 130 131 132 133 134
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\128\ Harrington, C., Swan, J.H. Nursing home staffing,
turnover, and case mix. Med. Care Res. Rev. 2003;60(3):366-92;
discussion 393-9. DOI: 10.1177/1077558703254692.
\129\ Castle, N.G., Engberg, J. Staff Turnover and Quality of
Care in Nursing Homes. Medical Care 2005;43(6):616-626.
\130\ Zheng, Q., Williams, C.S., Shulman, E.T., White, A.J.
Association between staff turnover and nursing home quality--
evidence from payroll-based journal data. J. Am. Geriatr. Soc.
2022;70(9):2508-2516. DOI: 10.1111/jgs.17843.
\131\ Loomer, L., Grabowski, D.C., Yu, H., Gandhi, A.
Association between nursing home staff turnover and infection
control citations. Health Serv. Res. 2022;57(2):322-332. DOI:
10.1111/1475-6773.13877.
\132\ Lerner, N.B., Johantgen, M., Trinkoff, A.M., Storr, C.L.,
Han, K. Are nursing home survey deficiencies higher in facilities
with greater staff turnover. J. Am. Med. Dir. Assoc. 2014;15(2):102-
7. DOI: 10.1016/j.jamda.2013.09.003.
\133\ Thomas, K.S., Mor, V., Tyler, D.A., Hyer, K. The
relationships among licensed nurse turnover, retention, and
rehospitalization of nursing home residents. Gerontologist
2013;53(2):211-21. DOI: 10.1093/geront/gns082.
\134\ Castle, N.G., Hyer, K., Harris, J.A., Engberg, J. Nurse
Aide Retention in Nursing Homes. Gerontologist 2020;60(5):885-895.
DOI: 10.1093/geront/gnz168.
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Sources of uncertainty about the benefits of the 24/7 RN, 3.48
total nurse staff, 0.55 RN, and 2.45 NA HPRD requirements parallel the
cost uncertainty discussed earlier but with some differences:
The benefits estimate assumed that LTC facilities needing RNs and/
or NAs to meet these requirements will hire the necessary staff. It
does not, however,
[[Page 40989]]
take into account how changes in the number of hours per resident day
of other direct care or support staff that occur in response to the
finalized requirements might affect the impact that increasing the RN
HPRD will have on Medicare cost savings. Some research, however, has
found that when States implemented minimum hour per day requirements
for direct care staff (RNs, LPNs, and NAs), LTC facilities responded by
reducing indirect care staff, such as housekeeping, food service, and
activities staff.135 136 If LTC facilities respond to the
24/7 RN, 3.48 total nurse staff HPRD, the 0.55 RN HPRD, and the 2.45 NA
HPRD requirement in similar ways, then benefits of the requirements
would be lower than what is presented above (see earlier discussion
about appropriate accounting depending on the consistency between
benefit and cost analytic approaches).
---------------------------------------------------------------------------
\135\ Thomas, Kali S., Kathryn Hyer, Ross Andel, and Robert
Weech-Maldonado. The Unintended Consequences of Staffing Mandates in
Florida Nursing Homes: Impacts on Indirect-Care Staff, 2010,
Medicare Care Research and Review, Volume 67, Issue 5, Pages 555-
573.
\136\ Bowblis, John R., and Kathryn Hyer. Nursing Home Staffing
Requirements and Input Substitution: Effects on Housekeeping, Food
Service, and Activities Staff, 2013, Health Services Research,
Volume 48, Issue 4, Pages: 1539-1550.
---------------------------------------------------------------------------
The benefits estimate assumed that LTC facilities that exceed the
24/7 RN, 3.48 total nurse staff, 0.55 RN HPRD, and 2.45 NA HPRD
requirements would maintain RN, NA, and total staffing at their current
levels. Research examining how LTC facilities have responded to State
level staffing mandates provides mixed evidence for this assumption,
with some research finding no evidence that LTC facilities exceeding
minimum requirements reduce staffing, while other research suggests
that they do.\137\ If LTC facilities reduced RN, NA, and total nurse
staffing levels to a level that is closer to the minimum requirement,
then benefits would be lower than what is estimated above.
---------------------------------------------------------------------------
\137\ Chen, Min M., and David C. Grabowski. Intended and
Unintended Consequences of Minimum Staffing Standards for Nursing
Homes, 2015, Volume 24, Pages 822-839.
---------------------------------------------------------------------------
The benefits estimate assumed no real growth in the financial value
of reduced Emergency Department visits and hospitalizations, as well as
increase in discharges to home or the community. If, however, the cost
of Emergency Department visits and hospitalizations grows faster than
the rate of inflation, then value of these benefits will be higher than
what we have estimated here.
The benefit estimates assumed that the nursing home resident
population will remain stable over the next 10 years. There is some
evidence, however, that the resident population is declining. CMS Care
Compare data shows that between February 2017 and February 2024, the
average number of residents in nursing homes per day declined from
1,346,712 residents to 1,207,726.\138\ If the resident population
continues to decrease, then the benefits could be lower than what we
have estimated. Similarly, if the pattern changes and the nursing home
resident population increases, the benefits could be higher than what
we have estimated.
---------------------------------------------------------------------------
\138\ CMS. (2024). Nursing homes including rehab services
archived data snapshots. Accessed March 19, 2024. Available at:
https://data.cms.gov/provider-data/archived-data/nursing-homes.
---------------------------------------------------------------------------
The benefits estimate assumed that no LTC facilities would obtain
exemptions from the 24/7 RN, 3.48 total nurse staff HPRD, 0.55 RN HPRD,
and 2.45 NA HPRD requirements, although some facilities could obtain
such an exemption. Based only on being located in an area with a nurse
staffing shortage, a preliminary analysis of the data suggests that
more than 29 percent of facilities would be eligible for an 8-hour
exemption from the 24/7 RN requirement and the 0.55 RN HPRD
requirement, 23 percent of facilities would be eligible for an
exemption from the 2.45 NA HPRD requirement, and 22 percent of
facilities would be eligible for an exemption from the 3.48 HPRD total
nurse staff requirement. Since facilities would also need to meet all
other requirements to obtain an exemption, however, these numbers are
not reflective of the number of facilities estimated to fully qualify
for the exemptions as they only describe the number of facilities that
would satisfy the workforce availability criterion. Depending on the
number of facilities that obtain an exemption, the total benefits of
the rule could be lower than what is presented above.
States could vary in how they respond to the increased staffing
requirement, including whether they pay at least some of the additional
nursing staffing costs with Medicaid funds. Benefits consequences are
contingent upon such choices. For example, if overall Medicaid spending
does not increase, but funds are shifted from other uses to increased
LTC facility staffing, there would be negative health benefits for the
patients experiencing reduced Medicaid coverage.
d. Transfers Associated With the 24/7 RN and 0.55 RN and 2.45 NA HPRD
Minimum Staffing Requirements
We do not estimate transfers associated with the 24/7 RN, 3.48
total nurse staff HPRD, 0.55 RN HPRD, and the 2.45 NA HPRD minimum
staffing portion of this rule since there are no requirements that
Medicare, Medicaid, and other non-Medicare/Medicaid payors increase
payment rates in response to these requirements.
(5) Medicaid Institutional Payment Transparency Reporting Provision
Impacts
Under our authority at sections 1902(a)(6) and (a)(30) of the Act
with regard to fee-for-service delivery systems, and sections
1902(a)(4) and 1932(c) of the Act with regard to managed care delivery
systems, we are finalizing new reporting requirements at Sec.
442.43(b) and (c) for States to report annually by facility on the
percent of payments for Medicaid-covered services delivered by nursing
facilities and ICFs/IID that are spent on compensation for direct care
workers and support staff.
As finalized, States are required to report annually to CMSs on the
percent of payments for nursing facility and ICF/IID services that are
spent on compensation for direct care workers and support staff. We are
finalizing that States are required to post all reported data on a
State-maintained website (or link to such information on an MCO's or
PIHP's website, as applicable), which States must ensure is reviewed
quarterly to verify the accurate function of the website and that the
information remains accurate and up to date. We believe that gathering
and sharing data about the amount of Medicaid dollars that are going to
the compensation of workers is a critical step in the larger effort to
understand the ways we can enact policies that support the
institutional care workforce and thereby help advance access to high
quality care for Medicaid beneficiaries.
a. Costs of Medicaid Institutional Payment Transparency Reporting
The following discussion is based on costs to States, the Federal
Government, and providers that were summarized in table 24 and
described in detail in the Collection of Information (section V. of
this final rule). As outlined in section V., we estimate one-time
implementation costs of $838,475 for States to come into compliance
with the reporting requirements finalized at Sec. 442.43(b) and (c).
As discussed in section V., the Federal Government, through Federal
Financial Participation,
[[Page 40990]]
has a share in Medicaid expenditures, which for the purposes of these
burden estimates is 50 percent of Medicaid expenditures. Thus, we
estimate the one-time costs of the reporting requirement finalized at
Sec. 442.43(b) and (c) as $419,237 for States and $419,237 for the
Federal Government. We estimate an annual total cost of $97,470 once
the reporting requirement goes into effect; again, as the costs will be
split between States and the Federal Government, we estimate the annual
ongoing costs as $48,735 for States and $48,735 for the Federal
Government. A breakdown of these figures may be found in tables 18 and
19 in the Collection of Information (section V. of this final rule.)
Additionally, under finalized Sec. 442.43(d), States are required
to make this information available on a public website; as outlined in
the Collection of Information (section V. of this rule), we estimate a
one-time implementation costs of $239,333 for States to come into
compliance with this requirement; as the costs will be split between
States and the Federal Government, we estimate the one-time cost for
States as $119,667 and $119,667 for the Federal Government. We estimate
an ongoing annual cost of $295,527 once reporting starts; as the costs
will be split between States and the Federal Government, we estimate
the one-time cost as $147,764 for States and $147,764 for the Federal
Government. A breakdown of these figures may be found in tables 22 and
23 in section V.
The total State and Federal costs for both the reporting and
website requirements are thus estimated at $1,077,808 for
implementation costs ($838,475 + $239,333) and $392,997 ongoing annual
costs once the reporting starts ($97,470 + $295,527).
As discussed in the Collection of Information (section V. of this
rule), we estimate that the total cost to providers to prepare for
compliance with the reporting requirement finalized at Sec. 442.43(b)
and (c) will be $36,560,002, and an annual total cost to providers of
$17,912,717. A breakdown of these figures may be found in tables 30 and
31 in section V.
We do not estimate a cost to providers for the website posting
requirement finalized at Sec. 442.43(d). We also do not anticipate
costs to beneficiaries associated with these requirements.
Table 31 provides a detailed summary of the estimated costs of each
of the requirements for States, the Federal Government, and providers.
Table 32 summarizes the estimated costs of the requirements in Sec.
442.43 for States, the Federal Government, and providers (Nursing Care
Facilities (NAICS 623110) and Residential Intellectual and
Developmental Disabilities Facilities (NAICS 623210)), over 10 years.
Aside from regulatory review costs (discussed in the next section) this
comprises the entirety of anticipated quantifiable costs associated
with the finalized changes to part 442, subpart B. The implementation
costs associated with the finalized reporting and website posting
requirements are split evenly over the years leading up to the
finalized effective date, which is 4 years from this final rule's
publication. For States and the Federal Government, this means that the
implementation costs are represented as $107,736 per year for 4 years
($430,942 estimated implementation costs/4 years). For providers, the
implementation costs are represented as $9,140,000 per year for 4 years
($36,560,002 estimated implementation costs/4 years). We also
anticipate that once the rule goes into effect in Year 5, the ongoing
annual costs will be relatively stable. We have shown the recurring
annual estimate for Years 5 to 10 in table 32. The estimates below do
not account for higher costs associated with medical care; the costs
calculated here are related exclusively to reporting and website
posting costs. Per OMB guidelines, the projected estimates for future
years are reported in real (inflation-indexed) dollars.
As discussed in the Collection of Information (section V. of this
rule), costs were based on: (1) the number of States (including
Washington, DC, and certain territories) that currently operate
Medicaid programs that cover nursing facility or ICF/IID services; (2)
the number of States that deliver long-term services and supports
through a managed care delivery system; and (3) the total number of
freestanding Medicaid-certified nursing facility and ICF/IID facilities
in all States. We do not anticipate the number of entities changing
significantly over the 10 years included in the cost calculations.
[GRAPHIC] [TIFF OMITTED] TR10MY24.122
[[Page 40991]]
[GRAPHIC] [TIFF OMITTED] TR10MY24.123
b. Benefits of Medicaid Institutional Payment Transparency Reporting
Our finalized requirements are intended to support the sufficiency
of the direct care and support staff workforce through public reporting
of compensation to these workers. While we believe this finalized
provision will provide benefits, we are not able to quantify these
benefits at this time.
There are many factors that contribute to understaffing in
institutional settings. We are constantly seeking opportunities to
address these challenges through guidance, policies, and rulemaking.
These finalized requirements are intended to promote transparency
around compensation for direct care workers and support staff. We
believe that gathering and sharing data about the amount of Medicaid
payments going to the compensation of workers is a critical step in the
larger effort to understand the ways we can enact future policies that
support the institutional care workforce.
c. Transfers Associated With Medicaid Institutional Payment
Transparency Reporting
We do not estimate transfers associated with these finalized
provisions.
D. Alternative Direct Care Staff HPRD Requirement Considered
As detailed earlier in this final rule, despite the existing
requirements and the efforts to improve safety, as well as residents'
quality of care and quality of life through the revisions in the 2016
final rule, understaffing in LTC facilities continues to be a concern.
We believe the changes we are finalizing are consistent with current
standards of practice and necessary to increase resident safety and
quality of care. We acknowledge, however, that there were multiple
avenues for establishing a minimum nurse staffing requirement and in
the proposed rule we solicited comments on alternative policy options,
including a specific comment solicitation in the ``Provisions of the
Proposed Regulation'' section.
In developing the final rule, we considered varying staffing models
that were available and different approaches we could have adopted for
the proposed minimum nurse staffing requirement. We could have adopted
multiple different types of combinations of a staffing requirement such
as separate requirements for RNs, LVNs/LPNs, and NAs or creating
standards for NAs only. We could also have implemented individual HPRD
requirements for RNs and NAs together with a 24/7 RN requirement but
excluded any requirement for an overall nurse staffing HPRD level,
which was a policy discussed in detail in the proposed rule.
Alternatively, we could have adopted non-nurse staffing requirements
such as social workers, therapists, feeding assistants and other non-
nurse staffing types in the minimum staffing requirement. Alternative
minimum staffing policy options could have also focused on the need to
increase or decrease the number of HPRD or FTEs by nurse staff and/or
type or on specifying the number of staff by shift (including day,
evening, night, or weekends or over a 24-hour period).
Ultimately, we chose the comprehensive 24/7 RN, 3.48 total nurse
staff HPRD, 0.55 RN HPRD, and 2.45 NA HPRD requirements in this final
rule to strike a balance between ensuring resident health and safety,
while preserving access to care, including discharge to community-based
services. We considered a staffing standard that would maintain the 24/
7 RN and 2.45 NA HPRD requirements but would have a lower RN HPRD
requirement. We found, however, that even a small reduction in the RN
HPRD requirement compared to baseline RN HPRD levels that are in the
two lowest deciles for nursing homes nationwide would lead to a large
decline in quality of care. For example, the 2022 Nursing Home Staffing
Study \139\ found that reducing the case-mix adjusted RN HPRD
requirement to between 0.45 and 0.52 hours per resident day would lead
the staffing standard to have a smaller impact on Medicare savings,
reduced hospitalizations and ED visits, and fewer community discharges.
More specifically, the number of reduced hospitalizations would decline
from 10,445 to 5,781, the number of reduced ED visits would decline
from 7,525 to 4,466, increased community discharges would decline from
5,798 to 3,930, and Medicare savings would decline by more than $130
million annually. We also considered alternative minimum staffing
requirements at the same level we are finalizing but with a longer
phase-in period for the 3.48 total nurse staff HPRD requirement. We
ultimately decide to provide a shorter phase-in period for the 3.48
total nurse staff HPRD requirement to ensure resident health and
safety.
2. Medicaid Institutional Payment Transparency Reporting
We considered, but did not finalize, a proposal to require States
to report per diem FFS rate for nursing facility and ICF/IID services;
we did not finalize this proposal as we believed it would duplicate
other reporting requirements.
[[Page 40992]]
We also considered, but did not finalize, a proposal to require States
to report on median hourly wage and to require that States report data
by job title. We did not finalize this proposal because we expected
that this would increase reporting burden for States and providers
without giving us additional information necessary for determining the
percent of payments that are going to the workforce.
E. Regulatory Review Costs
1. Regulatory Review Costs of 24/7 RN, 3.48 Total Nurse Staff, 0.55 RN
and 2.45 NA HPRD Minimum Nurse Staffing Requirements
If the 24/7 RN and the Minimum Nurse staffing requirements impose
administrative costs on private entities, such as the time needed to
read and interpret this final rule, we should estimate the cost
associated with regulatory review. As discussed in the Collection of
Information (section V. of this final rule), 14,688 LTC facilities will
be impacted by the finalized requirements. We assume that all 14,688
LTC facilities will proactively review this final rule. (We note that
the FY 2023 SNF PPS proposed rule, 87 FR 22720, had around 18,000
views, as shown at https://www.federalregister.gov/documents/2022/04/15/2022-07906/medicare-program-prospective-payment-system-and-consolidated-billing-for-skilled-nursing-facilities. Some of these
views were likely multiple views by the same reader.) We acknowledge
that this assumption may understate the costs of reviewing this rule.
It is possible that there may be more than one individual reviewing the
rule for some LTC facilities. It is also possible that entities other
than LTC facilities, such as beneficiary advocacy groups, may review
this rule.
We also recognize that different types of entities are in many
cases affected by mutually exclusive sections of some final rules, or
that some entities may not find it necessary to fully read each rule,
and therefore for the purposes of our estimate we assume that each
reviewer will read approximately 50 percent of the section of the rule
discussing the 24/7 RN requirement and the 3.48 total nurse staff, 0.55
RN, and 2.45 NA HPRD requirements.
Using the wage information from the Bureau of Labor Statistics, May
2022 National Occupational Employment and Wage Estimates, https://www.bls.gov/oes/current/oes_nat.htm, for medical and health service
managers (Code 11-9111), we estimate that the cost of reviewing this
rule is $123.06 per hour, including overhead and fringe benefits.
Assuming an average reading speed of 250 words per minute, and assuming
that two-thirds (67 percent) of this final rule pertains to the 24/7
RN, 3.48 total nurse staff HPRD, 0.55 RN HPRD, and 2.45 NA HPRD
requirements, with approximately 40,000 words (of which we estimate
20,000 words will be read by reviewers), we estimate that it would take
80 minutes or 1.33 hours for the staff to review all the sections of
the final rule pertaining to the 24/7 RN and the 3.48 total nurse staff
HPRD, 0.55 RN HPRD, and 2.45 NA HPRD requirements. For each employee
that reviews the rule, the estimated cost is $163.67 (1.33 hours x
$123.06). Therefore, we estimate that the total one-time cost of
reviewing this regulation is $2,403,985 ($163.67 x 14,688).
2. Regulatory Review Costs of Medicaid Institutional Payment
Transparency Reporting
As discussed in the Collection of Information (section IV. of the
proposed rule at 88 FR 61393 and 61395), 54 State Medicaid agencies and
approximately 19,907 nursing facilities and ICFs/IID would be impacted
by the requirements, totaling 19,961 interested parties. We note that
there was an error in the proposed rule at 88 FR 64124 that stated
incorrectly that 52, rather than 54 State Medicaid agencies were
affected by the rule; we have corrected that figure here.
As discussed in the proposed rule at 88 FR 64124, we estimated that
75 percent of these affected entities would proactively review the
final rule. We welcomed any comments on this approach but did not
receive any comments. Therefore, we are calculating the regulatory
review burden associated with the provision finalized at Sec. 442.43
using this assumption. We estimate that 14,971 entities read the rule
for the purpose of reviewing the provision finalized at Sec. 442.43
([54 + 19,907] x 75 percent.)
Using the wage information from the Bureau of Labor Statistics, May
2022 National Occupational Employment and Wage Estimates, https://www.bls.gov/oes/current/oes_nat.htm, for medical and health service
managers (Code 11-9111), we estimated that the cost of reviewing this
rule is $123.06 per hour, including overhead and fringe benefits.
Assuming an average reading speed of 250 words per minute, and assuming
that one-third of this rule pertains to Medicaid Institutional Payment
Transparency Reporting, with approximately 20,000 words (of which we
estimated 10,000 words were read by reviewers), we estimated that it
would take 40 minutes or 0.67 hours for the staff to review portions of
the sections of the final rule pertaining to the Medicaid Institutional
Payment Transparency Reporting. For each employee that reviewed the
rule, the estimated cost is $82.45 (0.67 hours x $123.06). Therefore,
we estimated that the total one-time cost of reviewing this regulation
is $1,234,359 ($82.45 x 14,971).
Table 33 provides the total estimated regulatory review costs for
the rule, which is $3,638,344.
[GRAPHIC] [TIFF OMITTED] TR10MY24.124
F. Accounting Statement
As required by OMB Circular A-4 (available online at https://obamawhitehouse.archives.gov/omb/circulars_a004_a-4/), we have prepared
an accounting statement in table 34 showing classification of the costs
and benefits associated with the provisions of this final rule. This
includes the total cost for the 24/7 RN and the 3.48 total nurse staff
HPRD, 0.55 RN HPRD, and 2.45 NA HPRD requirements as provided in table
22, the total cost for the Medicaid Institutional Transparency
Reporting as provided in table 18, the total cost for the regulatory
review as provided in table 33, and Medicare savings due to fewer
hospitalizations
[[Page 40993]]
and emergency department visits, as well as greater return to home and
community, as provided in table 30. There are $0 in transfer estimates
in the statement. This statement provides our best estimate for the
Medicare and Medicaid provisions of this rule.
BILLING CODE 4120-01-P
[GRAPHIC] [TIFF OMITTED] TR10MY24.125
BILLING CODE 4120-01-C
G. Regulatory Flexibility Act Analysis (RFA)
The RFA requires agencies to analyze options for regulatory relief
of small entities, if a rule has a significant impact on a substantial
number of small entities. For purposes of the RFA, we estimate that
almost all Skilled Nursing Facilities (NAICS 6231) and Intellectual and
Developmental Disabilities Facilities (NAICS 6232) are small entities,
as that term is used in the RFA (including small businesses, nonprofit
organizations, and small governmental jurisdictions). The great
majority of hospitals and most other health care providers and
suppliers are small entities, either by being nonprofit organizations
or by meeting the Small Business Administration (SBA)
[[Page 40994]]
definition of a small business (that is, having revenues of less than
$9.0 million to $47.0 million in any 1 year).
We utilized the revenues of individual SNF providers (from recent
Medicare Cost Reports) to classify a small business, and not the
revenue of a larger firm with which they may be affiliated. As a
result, for the purposes of the RFA, we estimate that almost all SNFs
are small entities as that term is used in the RFA, according to the
Small Business Administration's latest size standards, with total
revenues of $34 million or less in any 1 year. In addition,
approximately 20 percent of SNFs classified as small entities are non-
profit organizations. Therefore, approximately 95 percent of the health
care entities impacted are considered small businesses according to the
Small Business Administration's size standards with total revenues of
$47 million or less in any 1 year. Individuals and States are not
included in the definition of a small entity. According to the 2017
Economic Census, Skilled Nursing Facilities (NAICS 6231) and
Intellectual and Development Disabilities Facilities (NAICS 6232)
together earned approximately $162 billion annually, with Skilled
Nursing Facilities earning nearly $119 billion and Intellectual and
Development Disabilities Facilities earning approximately $44 billion.
Overall, the cost is estimated to be between 2.30 and 2.42 percent of
revenues.
Adjusting this amount for inflation, as measured by the Consumer
Price Index, combined revenues in 2021 Dollars are approximately $179.5
billion. Overall, the cost is estimated to be between 2.23 and 2.32
percent of revenues.
[GRAPHIC] [TIFF OMITTED] TR10MY24.150
This rule will not have a significant impact as measured by a
change in revenue of 3 to 5 percent on a substantial number of small
businesses or other small entities. As its measure of significant
economic impact on a substantial number of small entities, HHS uses a
change in revenue of more than 3 to 5 percent. At this time, we do not
believe that this threshold will be reached by the requirements in this
final rule. Therefore, the Secretary has certified that this final rule
will not have a significant economic impact on a substantial number of
small entities.
In addition, section 1102(b) of the Act requires us to prepare a
regulatory impact analysis if a rule may have a significant impact on
the operations of a substantial number of small rural hospitals. This
analysis must conform to the provisions of section 604 of the RFA. For
purposes of section 1102(b) of the Act, we define a small rural
hospital as a hospital that is located outside of an MSA and has fewer
than 100 beds. These proposals pertain solely to SNFs and NFs.
Therefore, the Secretary has determined that these provisions will not
have a significant impact on the operations of a substantial number of
small rural hospitals.
H. Unfunded Mandates Reform Act Analysis
Section 202 of the Unfunded Mandates Reform Act (UMRA) of 1995 also
requires that agencies assess anticipated costs and benefits before
issuing any rule whose mandates require spending in any 1 year of $100
million in 1995 dollars, updated annually for inflation. In 2023, that
threshold is approximately $183 million. Based on the cost estimates
discussed in this section, we have assessed the various costs and
benefits of the final updates to the requirements for participation for
LTC facilities. These final updates will not impose new requirements
for State, local, or Tribal governments. For the private sector
facilities, the regulatory impact section, together with the remainder
of the preamble, constitutes the analysis required under UMRA.
I. Federalism Analysis
Executive Order 13132 establishes certain requirements that an
agency must meet when it issues a final rule that imposes substantial
direct requirement costs on State and local governments, preempts State
law, or otherwise has federalism implications. With regard to the
updates to the requirements for participation for LTC facilities, the
provisions in this final rule are not intended to, and would not
preempt the applicability of any State or local law providing a higher
standard (in this case, a higher HPRD requirement for total nurse
staff, RNs and/or NAs or an RN coverage requirement in excess of at
least one RN on site 24-hours per day, 7 days a week) than we are
requiring in this final rule. To the extent Federal standards exceed
State and local law minimum staffing standards, no Federal pre-emption
is implicated because facilities complying with Federal law would also
be in compliance with State law. We are not aware of any State or local
law providing for a maximum staffing level. This final rule, however,
is intended to and would preempt the applicability of any State or
local law providing for a maximum staffing level, to the extent that
such a State or local maximum staffing level would prohibit a Medicare,
Medicaid, or dually certified LTC facility from meeting the minimum
HPRD requirements and RN coverage levels finalized in this rule or from
meeting higher staffing levels required based on the facility
assessment provisions finalized in this rule.
In accordance with the provisions of Executive Order 12866, this
final rule was reviewed by the Office of Management and Budget.
Chiquita Brooks-LaSure, Administrator of the Centers for
[[Page 40995]]
Medicare & Medicaid Services, approved this document on April 10, 2024.
List of Subjects
42 CFR Part 438
Administrative practice and procedure, Grant programs--health,
Health professions, Medicaid, Older adults, People with disabilities,
Reporting and recordkeeping requirements.
42 CFR Part 442
Administrative practice and procedure, Grant programs--health,
Health professions, Medicaid, Older adults, People with disabilities,
Reporting and recordkeeping requirements.
42 CFR Part 483
Grant programs--health, Health facilities, Health professions,
Health records, Medicaid, Medicare, Nursing homes, Nutrition, Reporting
and recordkeeping requirements, Safety.
For the reasons set forth in the preamble, the Centers for Medicare
& Medicaid Services amends 42 CFR chapter IV as set forth below:
PART 438--MANAGED CARE
0
1. The authority citation for part 438 continues to read as follows:
Authority: 42 U.S.C. 1302.
0
2. Section 438.72 is added to subpart B to read as follows:
Sec. 438.72 Additional requirements for long-term services and
supports.
(a) Nursing facility services and services delivered in
intermediate care facilities for individuals with intellectual
disabilities (ICFs/IID). The State must comply with the requirements in
Sec. 442.43 for nursing facility and ICF/IID services.
(b) [Reserved]
PART 442--STANDARDS FOR PAYMENT TO NURSING FACILITIES AND
INTERMEDIATE CARE FACILITIES FOR INDIVIDUALS WITH INTELLECTUAL
DISABILITIES
0
3. The authority citation for part 442 is revised to read as follows:
Authority: 42 U.S.C. 1302.
0
4. Section 442.43 is added to subpart B to read as follows:
Sec. 442.43 Payment transparency reporting.
(a) Definitions. (1) Compensation means, with respect to direct
care workers and support staff delivering services authorized under
this part:
(i) Salary, wages, and other remuneration as defined by the Fair
Labor Standards Act and implementing regulations (29 U.S.C. 201 et
seq., 29 CFR parts 531 and 778);
(ii) Benefits (such as health and dental benefits, life and
disability insurance, paid leave, retirement, and tuition
reimbursement); and
(iii) The employer share of payroll taxes.
(2) Direct care worker means one of the following individuals who
provides services to Medicaid-eligible individuals receiving services
under this part, who may be employed by or contracted or subcontracted
with a Medicaid provider or State or local government agency:
(i) A registered nurse, licensed practical nurse, nurse
practitioner, or clinical nurse specialist;
(ii) A certified nurse aide who provides services under the
supervision of a registered nurse, licensed practical nurse, nurse
practitioner, or clinical nurse specialist;
(iii) A licensed physical therapist, occupational therapist,
speech-language pathologist, or respiratory therapist;
(iv) A certified physical therapy assistant, occupational therapy
assistant, speech-language therapy assistant, or respiratory therapy
assistant or technician;
(v) A social worker;
(vi) A direct support professional;
(vii) A personal care aide;
(viii) A medication assistant, aide, or technician;
(ix) A feeding assistant;
(x) Activities staff; or
(xi) Any other individual who is paid to provide clinical services,
behavioral supports, active treatment (as defined at Sec. 483.440 of
this chapter) or address activities of daily living (such as those
described in Sec. 483.24(b) of this chapter) for Medicaid-eligible
individuals receiving Medicaid services under this part, including
nurses and other staff providing clinical supervision.
(3) Support staff means an individual who is not a direct care
worker and who maintains the physical environment of the care facility
or supports other services for residents. Support staff may be employed
by or contracted or subcontracted with a Medicaid provider or State or
local government agency. They include any of the following individuals:
(i) A housekeeper;
(ii) A janitor or environmental services worker;
(iii) A groundskeeper;
(iv) A food service or dietary worker;
(v) A driver responsible for transporting residents;
(vi) A security guard; or
(vii) Any other individual who is not a direct care worker and who
maintains the physical environment of the care facility or supports
other services for Medicaid-eligible individuals receiving Medicaid
services under this part.
(4) Excluded costs means costs reasonably associated with
delivering Medicaid-covered nursing facility or ICF/IID services that
are not included in the calculation of the percentage of Medicaid
payments to providers that is spent on compensation for direct care
workers and support staff. Such costs are limited to:
(i) Costs of required trainings for direct care workers and support
staff (such as costs for qualified trainers and training materials);
(ii) Travel costs for direct care workers and support staff (such
as mileage reimbursement or public transportation subsidies); and
(iii) Costs of personal protective equipment for facility staff.
(b) Reporting requirements. The State must report to CMS annually,
by facility, the percentage of Medicaid payments (not including
excluded costs) for services specified in paragraph (b)(1) of this
section, that is spent on compensation for direct care workers and on
compensation for support staff, at the time and in the form and manner
specified by CMS. For the purposes of this part, Medicaid payment for
fee-for-service (FFS) includes base and supplemental payments as
defined in section 1903(bb)(2) of the Social Security Act, and for
payments from a managed care organization (MCO) or prepaid inpatient
health plan (PIHP) (as these entities are defined in Sec. 438.2 of
this chapter) includes the MCO's or PIHP's contractually negotiated
rate, State directed payments as defined in Sec. 438.6(c) of this
chapter, pass-through payments as defined in Sec. 438.6(a) of this
chapter for nursing facilities, and any other payments from the MCO or
PIHP.
(1) Services. Except as provided in paragraphs (b)(2) and (3) of
this section, reporting must be based on all Medicaid payments
(including but not limited to FFS base and supplemental payments, and
payments from an MCO or PIHP, as applicable) made to nursing facility
and ICF/IID providers for Medicaid-covered services, with the exception
of services provided in swing bed hospitals as defined in Sec.
440.40(a)(1)(ii)(B) of this chapter.
(2) Exclusion of specified payments. The State must exclude from
its reporting to CMS payments claimed by the State for Federal
financial participation under this part for which Medicaid is not the
primary payer.
[[Page 40996]]
(3) Exclusion of data from the Indian Health Service and Tribal
health programs. States must exclude data from the Indian Health
Service and Tribal health programs subject to the requirements at 25
U.S.C. 1641 from the reporting required in paragraph (b) of this
section.
(c) Report contents and methodology--(1) Contents. Reporting must
provide information necessary to identify, at the facility level, the
percent of Medicaid payments spent on compensation to:
(i) Direct care workers at each nursing facility;
(ii) Support staff at each nursing facility;
(iii) Direct care workers at each ICF/IID; and
(iv) Support staff at each ICF/IID.
(2) Methodology. The State must provide information according to
the methodology, form, and manner of reporting stipulated by CMS.
(d) Availability and accessibility requirements. The State must
operate a website consistent with Sec. 435.905(b) of this chapter that
provides the results of the reporting requirements specified in
paragraphs (b) and (c) of this section. In the case of a State that
implements a managed care delivery system under the authority of
sections 1915(a), 1915(b), 1932(a), and/or 1115(a) of the Act and that
includes nursing facility and/or ICF/IID services in their MCO or PIHP
contracts, the State may meet this requirement by linking to individual
MCO's or PIHP's websites. The State must:
(1) Include clear and easy to understand labels on documents and
links;
(2) Verify no less than quarterly, the accurate function of the
website and the current accuracy of the information and links; and
(3) Include prominent language on the website explaining that
assistance in accessing the required information on the website is
available at no cost and include information on the availability of
oral interpretation in all languages and written translation available
in each non-English language, how to request auxiliary aids and
services, and a toll-free and TTY/TDY telephone number.
(e) Information reported by States. CMS must report on its website
the results of the reporting requirements specified in paragraphs (b)
and (c) of this section that the State reports to CMS.
(f) Applicability date. States must comply with the requirements in
this section beginning 4 years after June 21, 2024; and in the case of
the State that implements a managed care delivery system under the
authority of section 1915(a), 1915(b), 1932(a), or 1115(a) of the Act
and includes nursing facility services or ICF/IID services, the first
rating period for contracts with the MCO or PIHP beginning on or after
4 years after June 21, 2024.
PART 483--REQUIREMENTS FOR STATES AND LONG TERM CARE FACILITIES
0
5. The authority citation for part 483 continues to read as follows:
Authority: 42 U.S.C. 1302, 1320a-7, 1395i, 1395hh and 1396r.
0
6. Section 483.5 is amended by adding the definitions of ``Hours per
resident day'' and ``Representative of direct care employees'' in
alphabetical order to read as follows:
Sec. 483.5 Definitions.
* * * * *
Hours per resident day. Staffing hours per resident per day is the
total number of hours worked by each type of staff divided by the total
number of residents as calculated by CMS.
* * * * *
Representative of direct care employees. A representative of direct
care employees is an employee of the facility or a third party
authorized by direct care employees at the facility to provide
expertise and input on behalf of the employees for the purposes of
informing a facility assessment.
* * * * *
0
7. Section 483.10 is amended by revising paragraph (h)(3)(i) to read as
follows:
Sec. 483.10 Resident rights.
* * * * *
(h) * * *
(3) * * *
(i) The resident has the right to refuse the release of personal
and medical records except as provided at Sec. 483.70(h)(2) or other
applicable Federal or State laws.
* * * * *
0
8. Section 483.15 is amended by revising paragraph (c)(8) to read as
follows:
Sec. 483.15 Admission, transfer, and discharge rights.
* * * * *
(c) * * *
(8) Notice in advance of facility closure. In the case of facility
closure, the individual who is the administrator of the facility must
provide written notification prior to the impending closure to the
State Survey Agency, the Office of the State Long-Term Care Ombudsman,
residents of the facility, and the resident representatives, as well as
the plan for the transfer and adequate relocation of the residents, as
required at Sec. 483.70(k).
* * * * *
0
9. Section 483.35 is revised to read as follows:
Sec. 483.35 Nursing services.
The facility must have sufficient nursing staff with the
appropriate competencies and skills sets to provide nursing and related
services to assure resident safety and attain or maintain the highest
practicable physical, mental, and psychosocial well-being of each
resident, as determined by resident assessments and individual plans of
care and considering the number, acuity, and diagnoses of the
facility's resident population in accordance with the facility
assessment required at Sec. 483.71.
(a) Sufficient staff. (1) The facility must provide services by
sufficient numbers of each of the following types of personnel on a 24-
hour basis to provide nursing care to all residents in accordance with
resident care plans:
(i) Except when waived under paragraph (f) of this section,
licensed nurses; and
(ii) Other nursing personnel, including but not limited to nurse
aides.
(2) Except when waived under paragraph (f) of this section, the
facility must designate a licensed nurse to serve as a charge nurse on
each tour of duty.
(3) The facility must ensure that licensed nurses have the specific
competencies and skill sets necessary to care for residents' needs, as
identified through resident assessments, and described in the plan of
care.
(4) Providing care includes but is not limited to assessing,
evaluating, planning, and implementing resident care plans and
responding to resident's needs.
(b) Total nurse staffing (licensed nurses and nurse aides). (1) The
facility must meet or exceed a minimum of 3.48 hours per resident day
for total nurse staffing including but not limited to--
(i) A minimum of 0.55 hours per resident day for registered nurses;
and
(ii) A minimum of 2.45 hours per resident day for nurse aides.
(2) One or more of the hours per resident day requirements at
paragraph (b)(1) of this section may be exempted for facilities found
non-compliant and who meet the eligibility criteria defined at
paragraph (h) of this section as determined by the Secretary.
(3) Compliance with minimum total nurse staffing hours per resident
day as
[[Page 40997]]
set forth in one or more of the hours per resident day requirements of
paragraph (b)(1) of this section should not be construed as approval
for a facility to staff only to these numerical standards. Facilities
must ensure there are a sufficient number of staff with the appropriate
competencies and skills sets necessary to assure resident safety and to
attain or maintain the highest practicable physical, mental, and
psychosocial well-being of each resident, as determined by resident
assessments, acuity and diagnoses of the facility's resident population
in accordance with the facility assessment at Sec. 483.71.
(c) Registered nurse. (1) Except when waived or exempted under
paragraph (f), (g), or (h) of this section, the facility must have a
registered nurse (RN) onsite 24 hours per day, for 7 days a week that
is available to provide direct resident care.
(2) For any periods when the onsite RN requirements in paragraph
(c)(1) of this section are exempted under paragraph (h) of this
section, facilities must have a registered nurse, nurse practitioner,
physician assistant, or physician available to respond immediately to
telephone calls from the facility.
(3) Except when waived under paragraph (f) or (g) of this section,
the facility must designate a registered nurse to serve as the director
of nursing on a full time basis.
(4) The director of nursing may serve as a charge nurse only when
the facility has an average daily occupancy of 60 or fewer residents.
(d) Proficiency of nurse aides. The facility must ensure that nurse
aides are able to demonstrate competency in skills and techniques
necessary to care for residents' needs, as identified through resident
assessments, and described in the plan of care.
(e) Requirements for facility hiring and use of nursing aides--(1)
General rule. A facility must not use any individual working in the
facility as a nurse aide for more than 4 months, on a full-time basis,
unless--
(i) That individual is competent to provide nursing and nursing
related services; and
(ii)(A) That individual has completed a training and competency
evaluation program, or a competency evaluation program approved by the
State as meeting the requirements of Sec. Sec. 483.151 through
483.154; or
(B) That individual has been deemed or determined competent as
provided in Sec. 483.150(a) and (b).
(2) Non-permanent employees. A facility must not use on a
temporary, per diem, leased, or any basis other than a permanent
employee any individual who does not meet the requirements in
paragraphs (e)(1)(i) and (ii) of this section.
(3) Minimum competency. A facility must not use any individual who
has worked less than 4 months as a nurse aide in that facility unless
the individual--
(i) Is a full-time employee in a State-approved training and
competency evaluation program;
(ii) Has demonstrated competence through satisfactory participation
in a State-approved nurse aide training and competency evaluation
program or competency evaluation program; or
(iii) Has been deemed or determined competent as provided in Sec.
483.150(a) and (b).
(4) Registry verification. Before allowing an individual to serve
as a nurse aide, a facility must receive registry verification that the
individual has met competency evaluation requirements unless--
(i) The individual is a full-time employee in a training and
competency evaluation program approved by the State; or
(ii) The individual can prove that he or she has recently
successfully completed a training and competency evaluation program or
competency evaluation program approved by the State and has not yet
been included in the registry. Facilities must follow up to ensure that
such an individual actually becomes registered.
(5) Multi-State registry verification. Before allowing an
individual to serve as a nurse aide, a facility must seek information
from every State registry established under section 1819(e)(2)(A) or
1919(e)(2)(A) of the Act that the facility believes will include
information on the individual.
(6) Required retraining. If, since an individual's most recent
completion of a training and competency evaluation program, there has
been a continuous period of 24 consecutive months during none of which
the individual provided nursing or nursing-related services for
monetary compensation, the individual must complete a new training and
competency evaluation program or a new competency evaluation program.
(7) Regular in-service education. The facility must complete a
performance review of every nurse aide at least once every 12 months,
and must provide regular in-service education based on the outcome of
these reviews. In-service training must comply with the requirements of
Sec. 483.95(g).
(f) Nursing facilities: Waiver of requirement to provide licensed
nurses and a registered nurse on a 24-hour basis. To the extent that a
facility is unable to meet the requirements of paragraphs (a)(1),
(b)(1)(i), and (c)(1) of this section, a State may waive such
requirements with respect to the facility if--
(1) The facility demonstrates to the satisfaction of the State that
the facility has been unable, despite diligent efforts (including
offering wages at the community prevailing rate for nursing
facilities), to recruit appropriate personnel;
(2) The State determines that a waiver of the requirement will not
endanger the health or safety of individuals staying in the facility;
(3) The State finds that, for any periods in which licensed nursing
services are not available, a registered nurse or a physician is
obligated to respond immediately to telephone calls from the facility;
(4) A waiver granted under the conditions listed in this paragraph
(f) is subject to annual State review;
(5) In granting or renewing a waiver, a facility may be required by
the State to use other qualified, licensed personnel;
(6) The State agency granting a waiver of such requirements
provides notice of the waiver to the Office of the State Long-Term Care
Ombudsman (established under section 712 of the Older Americans Act of
1965) and the protection and advocacy system in the State for
individuals with a mental disorder who are eligible for such services
as provided by the protection and advocacy agency; and
(7) The nursing facility that is granted such a waiver by a State
notifies residents of the facility and their resident representatives
of the waiver.
(g) SNFs: Waiver of the requirement to provide services of a
registered nurse for at least 112 hours a week. (1) The Secretary may
waive the requirement that a SNF provide the services of a registered
nurse for more than 40 hours a week, including a director of nursing
specified in paragraph (c) of this section, if the Secretary finds
that--
(i) The facility is located in a rural area and the supply of
skilled nursing facility services in the area is not sufficient to meet
the needs of individuals residing in the area;
(ii) The facility has one full-time registered nurse who is
regularly on duty at the facility 40 hours a week; and
(iii) The facility either--
(A) Has only patients whose physicians have indicated (through
physicians' orders or admission notes) that they do not require the
services of
[[Page 40998]]
a registered nurse or a physician for a 48-hours period; or
(B) Has made arrangements for a registered nurse or a physician to
spend time at the facility, as determined necessary by the physician,
to provide necessary skilled nursing services on days when the regular
full-time registered nurse is not on duty;
(iv) The Secretary provides notice of the waiver to the Office of
the State Long-Term Care Ombudsman (established under section 712 of
the Older Americans Act of 1965) and the protection and advocacy system
in the State for individuals with developmental disabilities or mental
disorders; and
(v) The facility that is granted such a waiver notifies residents
of the facility and their resident representatives of the waiver.
(2) A waiver of the registered nurse requirement under paragraph
(g)(1) of this section is subject to annual renewal by the Secretary.
(h) Hardship exemptions from the minimum hours per resident day and
registered nurse onsite 24 hours per day, for 7 days a week
requirements. A facility may be exempted by the Secretary from one or
more of the requirements of paragraphs (b)(1) and (c)(1) of this
section if a verifiable hardship exists that prohibits the facility
from achieving or maintaining compliance. The facility must meet the
four following criteria to qualify for and receive a hardship
exemption:
(1) Location. The facility is located in an area where the supply
of applicable healthcare staff (RN, nurse aide (NA), or total nurse
staffing, as indicated in paragraphs (h)(1)(i), (ii), and/or (iii) of
this section) is not sufficient to meet area needs as evidenced by a
provider to population ratio for nursing workforce that is a minimum of
20 percent below the national average, as calculated by CMS, by using
data from the Bureau of Labor Statistics and Census Bureau.
(i) The facility may receive an exemption from the total nurse
staffing requirement of 3.48 hours per resident day at paragraph (b)(1)
of this section if the combined licensed nurse, which includes both RNs
and licensed vocational nurses (LVN)/licensed practical nurses (LPNs)
and nurse aide to population ratio in its area is a minimum of 20
percent below the national average.
(ii) The facility may receive an exemption from the 0.55 registered
nurse hours per resident day requirement at paragraph (b)(1)(i) of this
section and an exemption of 8 hours a day from the registered nurse on
site 24 hours per day, for 7 days a week requirement at paragraph
(c)(1) of this section if the registered nurse to population ratio in
its area is a minimum of 20 percent below the national average.
(iii) The facility may receive an exemption from the 2.45 nurse
aide hours per resident day requirement at paragraph (b)(1)(ii) of this
section if the nurse aide to population ratio in its area is a minimum
of 20 percent below the national average.
(2) Good faith efforts to hire. The facility demonstrates that it
has been unable, despite diligent efforts, including offering at least
prevailing wages, to recruit and retain appropriate personnel. The
information is verified through:
(i) Job listings in commonly used recruitment forums found online
at American Job Centers (coordinated by the U.S. Department of Labor's
Employment and Training Administration), and other forums as
appropriate;
(ii) Documented job vacancies including the number and duration of
the vacancies and documentation of offers made, including that they
were made at least at prevailing wages;
(iii) Data on the average wages in the Metropolitan Statistical
Area in which the facility is located and vacancies by industry as
reported by the Bureau of Labor Statistics or by the State's Department
of Labor; and
(iv) The facility's staffing plan in accordance with Sec.
483.71(b)(4); and
(3) Demonstrated financial commitment. The facility demonstrates
through documentation the amount of financial resources that the
facility expends on nurse staffing relative to revenue.
(4) Disclosure of exemption status. The facility:
(i) Posts, in a prominent location in the facility, and in a form
and manner accessible and understandable to residents, and resident
representatives, a notice of the facility's exemption status, the
extent to which the facility does not meet the minimum staffing
requirements, and the timeframe during which the exemption applies; and
(ii) Provides to each resident or resident representative, and to
each prospective resident or resident representative, a notice of the
facility's exemption status, including the extent to which the facility
does not meet the staffing requirements, the timeframe during which the
exemption applies, and a statement reminding residents of their rights
to contact advocacy and oversight entities, as provided in the notice
provided to them under Sec. 483.10(g)(4); and
(iii) Sends a copy of the notice to a representative of the Office
of the State Long-Term Care Ombudsman.
(5) Exclusions. Facilities must not:
(i) Be a Special Focus Facility, pursuant to the Special Focus
Facility Program established under sections 1819(f)(8) and 1919(f)(10)
of the Act; or
(ii) Have been cited for having widespread insufficient staffing
with resultant resident actual harm or a pattern of insufficient
staffing with resultant resident actual harm, or cited at the immediate
jeopardy level of severity with respect to insufficient staffing as
determined by CMS, within the 12 months preceding the survey during
which the facility's non-compliance is identified; or
(iii) Have failed to submit Payroll Based Journal data in
accordance with Sec. 483.70(p).
(6) Determination of eligibility. The Secretary, through CMS or the
State, will determine eligibility for an exemption based on the
criteria in paragraphs (h)(1) through (5) of this section. The facility
must provide supporting documentation when requested.
(7) Timeframe. The term for a hardship exemption is from grant of
exemption until the next standard recertification survey, unless the
facility becomes a Special Focus Facility, is cited for widespread
insufficient staffing with resultant resident actual harm or a pattern
of insufficient staffing with resultant resident actual harm, or is
cited at the immediate jeopardy level of severity with respect to
insufficient staffing as determined by CMS, or fails to submit Payroll
Based Journal data in accordance with Sec. 483.70(p). A hardship
exemption may be extended on each standard recertification survey,
after the initial period, if the facility continues to meet the
exemption criteria in paragraphs (h)(1) through (5) of this section, as
determined by the Secretary.
(i) Nurse staffing information--(1) Data requirements. The facility
must post the following information on a daily basis:
(i) Facility name.
(ii) The current date.
(iii) The total number and the actual hours worked by the following
categories of licensed and unlicensed nursing staff directly
responsible for resident care per shift:
(A) Registered nurses.
(B) Licensed practical nurses or licensed vocational nurses (as
defined under State law).
(C) Certified nurse aides.
(iv) Resident census.
[[Page 40999]]
(2) Posting requirements. (i) The facility must post the nurse
staffing data specified in paragraph (i)(1) of this section on a daily
basis at the beginning of each shift.
(ii) Data must be posted as follows:
(A) Clear and readable format.
(B) In a prominent place readily accessible to residents, staff,
and visitors.
(3) Public access to posted nurse staffing data. The facility must,
upon oral or written request, make nurse staffing data available to the
public for review at a cost not to exceed the community standard.
(4) Facility data retention requirements. The facility must
maintain the posted daily nurse staffing data for a minimum of 18
months, or as required by State law, whichever is greater.
0
10. Section 483.40 is amended by revising paragraphs (a) introductory
text, (a)(1), and (c)(2) to read as follows:
Sec. 483.40 Behavioral health services.
* * * * *
(a) The facility must have sufficient staff who provide direct
services to residents with the appropriate competencies and skills sets
to provide nursing and related services to assure resident safety and
attain or maintain the highest practicable physical, mental and
psychosocial well-being of each resident, as determined by resident
assessments and individual plans of care and considering the number,
acuity and diagnoses of the facility's resident population in
accordance with Sec. 483.71. These competencies and skills sets
include, but are not limited to, knowledge of and appropriate training
and supervision for:
(1) Caring for residents with mental and psychosocial disorders, as
well as residents with a history of trauma and/or post-traumatic stress
disorder, that have been identified in the facility assessment
conducted pursuant to Sec. 483.71; and
* * * * *
(c) * * *
(2) Obtain the required services from an outside resource (in
accordance with Sec. 483.70(f)) from a Medicare and/or Medicaid
provider of specialized rehabilitative services.
* * * * *
0
11. Section 483.45 is amended by revising the introductory text to read
as follows:
Sec. 483.45 Pharmacy services.
The facility must provide routine and emergency drugs and
biologicals to its residents, or obtain them under an agreement
described in Sec. 483.70(f). The facility may permit unlicensed
personnel to administer drugs if State law permits, but only under the
general supervision of a licensed nurse.
* * * * *
0
12. Section 483.55 is amended by revising paragraphs (a) introductory
text, (a)(1), (b) introductory text, and (b)(1) introductory text to
read as follows:
Sec. 483.55 Dental services.
* * * * *
(a) Skilled nursing facilities. A facility:
(1) Must provide or obtain from an outside resource, in accordance
with Sec. 483.70(f), routine and emergency dental services to meet the
needs of each resident;
* * * * *
(b) Nursing facilities. The facility:
(1) Must provide or obtain from an outside resource, in accordance
with Sec. 483.70(f), the following dental services to meet the needs
of each resident:
* * * * *
0
13. Section 483.60 is amended by revising paragraph (a) introductory
text to read as follows:
Sec. 483.60 Food and nutrition services.
* * * * *
(a) Staffing. The facility must employ sufficient staff with the
appropriate competencies and skills sets to carry out the functions of
the food and nutrition service, taking into consideration resident
assessments, individual plans of care and the number, acuity and
diagnoses of the facility's resident population in accordance with the
facility assessment required at Sec. 483.71. This includes:
* * * * *
0
14. Section 483.65 is amended by revising paragraph (a)(2) to read as
follows:
Sec. 483.65 Specialized rehabilitative services.
(a) * * *
(2) In accordance with Sec. 483.70(f), obtain the required
services from an outside resource that is a provider of specialized
rehabilitative services and is not excluded from participating in any
Federal or State health care programs pursuant to section 1128 and 1156
of the Act.
* * * * *
Sec. 483.70 [Amended]
0
15. Section 483.70 is amended by--
0
a. Removing paragraph (e); and
0
b. Redesignating paragraphs (f) through (q) as paragraphs (e) through
(p), respectively.
0
16. Add Sec. 483.71 to subpart B to read as follows:
Sec. 483.71 Facility assessment.
The facility must conduct and document a facility-wide assessment
to determine what resources are necessary to care for its residents
competently during both day-to-day operations (including nights and
weekends) and emergencies. The facility must review and update that
assessment, as necessary, and at least annually. The facility must also
review and update this assessment whenever there is, or the facility
plans for, any change that would require a substantial modification to
any part of this assessment.
(a) The facility assessment must address or include the following:
(1) The facility's resident population, including, but not limited
to:
(i) Both the number of residents and the facility's resident
capacity;
(ii) The care required by the resident population, using evidence-
based, data-driven methods that consider the types of diseases,
conditions, physical and behavioral health needs, cognitive
disabilities, overall acuity, and other pertinent facts that are
present within that population, consistent with and informed by
individual resident assessments as required under Sec. 483.20;
(iii) The staff competencies and skill sets that are necessary to
provide the level and types of care needed for the resident population;
(iv) The physical environment, equipment, services, and other
physical plant considerations that are necessary to care for this
population; and
(v) Any ethnic, cultural, or religious factors that may potentially
affect the care provided by the facility, including, but not limited
to, activities and food and nutrition services.
(2) The facility's resources, including but not limited to the
following:
(i) All buildings and/or other physical structures and vehicles;
(ii) Equipment (medical and non-medical);
(iii) Services provided, such as physical therapy, pharmacy,
behavioral health, and specific rehabilitation therapies;
(iv) All personnel, including managers, nursing and other direct
care staff (both employees and those who provide services under
contract), and volunteers, as well as their education and/or training
and any competencies related to resident care;
[[Page 41000]]
(v) Contracts, memorandums of understanding, or other agreements
with third parties to provide services or equipment to the facility
during both normal operations and emergencies; and
(vi) Health information technology resources, such as systems for
electronically managing patient records and electronically sharing
information with other organizations.
(3) A facility-based and community-based risk assessment, utilizing
an all-hazards approach as required in Sec. 483.73(a)(1).
(b) In conducting the facility assessment, the facility must
ensure:
(1) Active involvement of the following participants in the
process:
(i) Nursing home leadership and management, including but not
limited to, a member of the governing body, the medical director, an
administrator, and the director of nursing; and
(ii) Direct care staff, including but not limited to, RNs, LPNs/
LVNs, NAs, and representatives of the direct care staff, if applicable.
(iii) The facility must also solicit and consider input received
from residents, resident representatives, and family members.
(2) [Reserved]
(c) The facility must use this facility assessment to:
(1) Inform staffing decisions to ensure that there are a sufficient
number of staff with the appropriate competencies and skill sets
necessary to care for its residents' needs as identified through
resident assessments and plans of care as required in Sec.
483.35(a)(3).
(2) Consider specific staffing needs for each resident unit in the
facility and adjust as necessary based on changes to its resident
population.
(3) Consider specific staffing needs for each shift, such as day,
evening, night, and adjust as necessary based on any changes to its
resident population.
(4) Develop and maintain a plan to maximize recruitment and
retention of direct care staff.
(5) Inform contingency planning for events that do not require
activation of the facility's emergency plan, but do have the potential
to affect resident care, such as, but not limited to, the availability
of direct care nurse staffing or other resources needed for resident
care.
0
17. Section 483.75 is amended by revising paragraphs (c)(2) and (e)(3)
to read as follows:
Sec. 483.75 Quality assurance and performance improvement.
* * * * *
(c) * * *
(2) Facility maintenance of effective systems to identify, collect,
and use data and information from all departments, including but not
limited to the facility assessment required at Sec. 483.71 and
including how such information will be used to develop and monitor
performance indicators.
* * * * *
(e) * * *
(3) As a part of their performance improvement activities, the
facility must conduct distinct performance improvement projects. The
number and frequency of improvement projects conducted by the facility
must reflect the scope and complexity of the facility's services and
available resources, as reflected in the facility assessment required
at Sec. 483.71. Improvement projects must include at least annually a
project that focuses on high risk or problem-prone areas identified
through the data collection and analysis described in paragraphs (c)
and (d) of this section.
* * * * *
0
18. Section 483.80 is amended by revising paragraph (a)(1) to read as
follows:
Sec. 483.80 Infection control.
* * * * *
(a) * * *
(1) A system for preventing, identifying, reporting, investigating,
and controlling infections and communicable diseases for all residents,
staff, volunteers, visitors, and other individuals providing services
under a contractual arrangement based upon the facility assessment
conducted according to Sec. 483.71 and following accepted national
standards.
* * * * *
0
19. Section 483.95 is amended by revising the introductory text to read
as follows:
Sec. 483.95 Training requirements.
A facility must develop, implement, and maintain an effective
training program for all new and existing staff; individuals providing
services under a contractual arrangement; and volunteers, consistent
with their expected roles. A facility must determine the amount and
types of training necessary based on a facility assessment as specified
at Sec. 483.71. Training topics must include but are not limited to--
* * * * *
Xavier Becerra,
Secretary, Department of Health and Human Services.
[FR Doc. 2024-08273 Filed 4-22-24; 4:15 pm]
BILLING CODE 4120-01-P
