May 31 2024 | CMS Minimum Staffing Rules-Facility Assessment Requirements Go Into Effect Soon! What you Need to Know!

On April 22, 2024, the Centers for Medicare and Medicaid Services (CMS) released the anticipated final rule, Minimum Staffing Standards for Long-Term Care Facilities and Medicaid Institutional Payment Transparency Reporting. While the final rule is scheduled to be published in the Federal Register on May 10, 2024, the effective date for this final rule is June 21, 2024. It is important to be aware that several components of the rule have specific implementation dates beyond this effective date.

The most immediate requirement that facility staff need to focus on is the Facility Assessment Requirements. CMS finalized the revised Facility Assessment as a standalone section § 483.71, as proposed, and removed from its current location in Administration, § 483.70(e). Various sections of the Requirements of Participation (RoP) were also updated with the reference to the new location of the Facility Assessment at § 483.71.

Facilities have 90 days to implement updates to the Facility Assessment. The Facility Assessment must use evidence-based, data-driven methods for the care required by the resident population. CMS outlined the requirements below as part of changes to the facility assessment.

• The facility must use the 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 its residents’ needs as identified through resident assessments and plans of care. Specific staffing needs need to be considered for each resident unit in the facility as well as each shift, such as day, evening, night, weekends, and adjusted as necessary based on any changes to the resident population.
• The Facility Assessment must address residents with various diagnoses, including behavioral health needs, along with services provided to them.
• Facility leadership and management must be actively involved in the Facility Assessment process, 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, NACs, and representatives of direct care staff, if applicable.

o Examples of representatives of direct care staff may include 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.

o Additionally, if the facility has specialized units, such as memory care, behavioral health, sub-acute, or ventilator/trach dependent residents, CMS encourages the inclusion or input of staff from those units.

• The facility must solicit and consider input received from residents, resident representatives, family members, and representatives of direct care staff.
• The facility must use the facility assessment to:

o Develop and maintain a plan to maximize direct care staff recruitment and retention.

o 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.

CMS briefly touched on the area of enforcement and remedies within the final rule but did not provide specific details on how they would determine non-compliance. In the absence of further guidance, it is imperative that facilities develop processes to ensure that all the necessary components are in place for the facility assessment to include the required areas of regulatory change. As well as documentation to show the “how” these processes are being implemented.

CMS did state that remedies/enforcement actions 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. CMS will ensure that facilities are surveyed for compliance with the updated LTC requirements in the rule and enforce them as part of the existing survey, certification, and enforcement process for LTC facilities. CMS will publish more details on how compliance will be assessed after publication of this final rule in advance of each implementation date for the different components of the rule.

CMS also finalized specific total nurse staffing, nurse aide, and RN HPRD, as well as the 24/7 RN requirements. These topics will be covered in upcoming WHCA Survey & Regulatory Updates.

*June 2024      Total nurse staffing, nurse aide, and RN HPRD, as well as the 24/7 RN Requirements

*July 2024       Waiver Processes Available for Minimum Staffing Requirements

If you have questions, please call Elena Madrid at (800) 562-6170, extension 105, or email.