Q: When will the rule be finalized?
A: Medicare and Medicaid Programs: Minimum Staffing Standards for Long-Term Care Facilities and Medicaid Institutional Payment Transparency Reporting (CMS 3442-P) proposed rule was published in the Federal Register September 6, 2023. Comments to Centers for Medicare & Medicaid Services (CMS) are due by November 6, 2023. This rule is proposed and the comments received will be considered for the final rule. Although the comment period is sixty (60) days, the time frame for the rule to be finalized does not have a commitment date. All comments will need to be analyzed and reviewed by CMS and then a final rule will be issued.
Q: Is this proposed staffing mandate for only Medicare A certified beds or for all licensed nursing facility beds?
A: The proposed mandate requirement would apply to all CMS-certified nursing homes (skilled and long-term care).
Q: Where do Licensed Practical Nurses (LPNs)/Licensed Vocational Nurses (LVNs) fit into the HPRD?
A: LPNs/LVNs are not calculated in the proposed staffing ratio. The ratio is .55 HPRD for Registered (RNs) and 2.45 HRPD for Certified Nursing Assistants (CNAs).
Q: Can a LPN/LVN be substituted for a CNA or used in CNA hours?
A: The team member of a LPN/LVN is not counted or used in the proposed HPRD mandate. The only positions are RN and CNA.
Q: For the minimum CNA hours, if a nursing home is over in RN hours, but under in CNA hours, does the RN hours count toward the CNA hours?
A: The RN HPRD is a separate ratio and cannot be counted in the CNA hours.
Q: Would a provider need to meet ALL three of the exemption criteria, or just one?
A: If a nursing home requests an exemption from the minimum staffing criteria, all specific criteria must be met: location, good faith efforts to recruit and retain staff and documentation of financial commitment. Nursing homes must meet all of the above criteria to be eligible for a hardship exemption from minimum staffing standards for RN and CNA hours.
Q: Are there any requirements that would preclude a nursing home from being eligible for an exemption?
A: Yes, a nursing home would not be eligible for an exemption if any of the following are true:
- The nursing home failed to submit payroll-based journal (PBJ) data.
- The nursing home is designated as a Special Focus Facility.
- The nursing home is cited for either a pattern of or a widespread insufficient staffing that results in actual harm.
- The nursing home has been cited in the past 12 months at immediate jeopardy for insufficient staffing.
Q: When the final rule is published, what part of the rule need to be implemented first?
A: The Facility Assessment requirements would be implemented 60 days from the date of publication of the final rule.
Q: Will LeadingAge be helping to create a Facility Assessment?
A: Currently, there is a Facility Assessment tool kit for members on the LeadingAge website. We will be working to update the toolkit with the enhanced requirements for Facility Assessment.
Keep up on our latest updates, including additional information, analysis, and advocacy opportunities, on our Staffing Ratios serial post.
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