Some nursing home residents may never feel the benefit of new beefed-up staffing requirements because a complex mix of waivers and exemptions could allow some facilities to avoid key provisions of the mandate for years.
The Social Security Act and other federal laws allow states and the Health and Human Services secretary to waive nursing homes’ compliance with new staffing mandates for licensed nurses and nursing aides, say those who follow the industry closely.
Thousands of facilities will likely be eligible for an exemption, according to the Centers for Medicare & Medicaid Services, which issued the staffing requirements last month.
“Unfortunately, a lot of these waivers are going to go to the worst performing homes because this is really what this rule addresses, are the most poor-performing homes in the country,” said Sam Brooks, policy director at the Consumer Voice for Quality Long-Term Care, which opposes all waivers and exemptions to the requirement.
The exemptions and waivers—along with the staffing mandate’s five-year implementation—could delay and dilute expected improvements in the quality of care for nursing home residents, say organizations that pushed for a national staffing standard for decades. And because the staffing requirements will be enforced through the annual state inspection process, a shortage of state nursing home inspectors only adds to the problem.
“While we are confident that the exemption process can be embedded into the existing oversight structure, for over nine years, annual funding for survey and certification programs to conduct health and safety inspections hasn’t changed, even as the volume of complaints about nursing homes has risen,” the CMS said in a statement to Bloomberg Law.
The CMS can only exempt a facility after it has been cited for violating the staffing rule during a state inspection. But nursing homes that might benefit from such an exemption can’t request an inspection or self-initiate the process.
“Understanding that state agencies continue to suffer from workforce shortages and survey backlogs, we are concerned with how quickly exemptions will be processed,” said an email statement from Jodi Eyigor, director of nursing home quality policy at LeadingAge, which represents nonprofit aging services providers.
The staffing rule (RIN 0938-AV25) requires all Medicare- and Medicaid-certified facilities to provide 3.48 “hours per resident day” of total staffing. HPRD is the total number of hours worked by each type of staff divided by the total number of residents, according to the CMS. Registered nurses must provide 0.55 HPRD toward the staffing mandate, while nurse aides must account for at least 2.45 HPRD. Any combination of licensed practical nurses, RNs, and nurse aides can make up the remaining 0.48 HPRD.
Thousands of Nurses Needed
An estimated 12,000 registered nurses and more than 77,000 nursing aides are currently needed to meet the new requirement, senior administration officials said. About 22% of facilities would need to hire additional registered nurses to meet the new round-the-clock requirement. About 1.2 million Americans reside in nursing homes.
The CMS estimates 3,300 facilities will satisfy workforce availability requirements, which would make them eligible to be exempted from the 3.48 HPRD requirement. Nearly 3,400 nursing homes, about 23%, will likewise be eligible for an exemption to the 2.45 HPRD requirement for nurse aides. And just over 29%, or 4,274 homes, will be eligible for either the eight-hour exemption from the 24/7 RN requirement and/or the 0.55 HPRD requirement for registered nurses.
The CMS notes that eligibility alone does not guarantee that an exemption will be granted.
Facilities must meet all other requirements to receive an exemption, including documenting their efforts to hire and retain staff, and their annual spending for staff, it said. They also have to post their exemption status in the facility, and share the information with residents, prospective residents, and the state ombudsman.
“CMS believes these criteria, along with transparency requirements, will encourage facilities to strive for compliance,” the agency’s email said.
But the exemptions “will be virtually impossible for many facilities to acquire” because the process is “cumbersome with arbitrary requirements,” said an email from Holly Harmon, senior vice president of quality, regulatory and clinical affairs at the American Health Care Association, the industry’s largest trade group.
“We are deeply concerned that Administration officials are pointing to this exemption process to try to alleviate the substantial concerns of the long term care community and many lawmakers,” Harmon said. “The reality is that the process is arduous and unrealistic. Ultimately, without a viable path for many facilities to attain an exemption, they will be forced to downsize or close—reducing seniors’ access to care.”
Nursing homes in nonrural areas have three years to meet the staffing requirements under the rule. Rural nursing homes have five years. Round-the-clock registered nurses are required in nonrural facilities two years after the rule is finalized. Rural facilities would have three years to comply.
Nursing homes have argued for a longer implementation to help facilities adjust to the extra cost of adding registered nurses and nurse aides. The CMS estimates the industry will pay $43 billion over 10 years to implement the rule. Industry trade groups say it will cost about $7 billion a year.
The rule allows facilities to waive the round-the-clock RN requirement during one eight-hour shift per day if a physician’s assistant or registered nurse is available by phone during that shift, a senior administration official said previously.
Social Security Act
But the Social Security Act already allows nursing homes to avoid providing RNs and licensed practical nurses “on a 24-hour basis,” Brooks said. Another SSA provision “waives the requirement that a facility provide RN services for more than 40 hours per week,” Brooks added.
“These are in the law. They could not be changed by regulation,” Brooks said.
Federal law also allows states to waive the 24/7 RN requirement, and the 0.55 HPRD requirement for RNs in some facilities, the Consumer Voice reported. But only if: a facility shows it can’t recruit appropriate staff despite good-faith efforts; the state determines that resident health and safety is not endangered by a waiver; an RN or physician is designated to respond immediately to phone calls from facility.
The state waivers are subject to annual review, and the state long-term care ombudsman must be notified whenever the waivers are granted, the Consumer Voice reported. Facilities that get the waivers must notify residents and their families as well.
The HHS secretary can also waive the mandate’s requirement that facilities provide RN services for more than 40 hours per week, Brooks said. But only if: the facility is in a rural area with insufficient nursing home services; the nursing home has one full-time RN who regularly works a 40-hour week; the residents don’t require RN or physician services for a 48-hour period. The waiver is subject to annual renewal by the HHS secretary, Brooks said.
Hardship Exemption
In a new set of exemptions created by the CMS, Brooks said the HHS secretary can also exempt a facility from one or more of the minimum staffing requirements for licensed nurses and nurse aides—and eight hours of the 24/7 RN requirement—if a hardship keeps it from complying with the staffing mandate.
Factors considered when granting hardship exemptions include facility location, whether good faith hiring efforts were made, and a demonstrated financial commitment to hiring, the group reported.
Nursing homes ineligible for hardship exemptions include the lowest-performing “special focus facilities,” those cited for “immediate jeopardy” violations, those that don’t submit proper staffing data to the federal government, and those with staffing practices that resulted in resident harm, Brooks said.
