In a long-awaited and controversial Ultimate Rule posted on April 22, 2024,[1] the Facilities for Medicare and Medicaid Companies (CMS) adopted new federal minimal staffing necessities that may require long-term care amenities to (1) make sure the presence of a registered nurse (RN) on-site 24 hours per day, seven days per week; and (2) present a minimal of three.48 whole nurse staffing hours per resident day (HPRD), which incorporates at the least 0.55 HPRD for RNs and a couple of.45 HPRD for nurse aides (NAs). Regardless of industry-wide opposition to federal minimal staffing requirements and the shortage of any new funding, CMS believes that these new requirements will improve staffing in additional than 79 % of nursing amenities nationwide. Notably, the Ultimate Rule establishes staffing necessities that exceed the present minimal staffing requirements in all 50 states.
Hardship Exemptions
The Ultimate Rule permits amenities to use for hardship exemptions, which can solely be obtainable in restricted circumstances. To qualify for an exemption, a facility should meet sure standards for geographic staffing unavailability, monetary dedication to staffing and good religion efforts to rent. As well as, amenities won’t be eligible for an exemption if they’ve (i) did not submit required Payroll Based mostly Journal (PBJ) knowledge; (ii) been designated as a Particular Focus Facility; (iii) been cited for widespread inadequate staffing with resident hurt; or (iv) been cited for instant jeopardy with respect to inadequate staffing.
Staggered Implementation Timeline
Non-rural amenities should be in compliance with the whole nurse staffing normal of three.48 HPRD by Might 11, 2026, and rural amenities should be in compliance by Might 10, 2027. Amenities should adjust to the RN on-site 24 hours/7 day every week requirement by these identical dates.
CMS expects non-rural amenities to be in compliance with the minimal normal of 0.55 RN HPRD and a couple of.45 NA HPRD by Might 10, 2027, and rural amenities to be in compliance by Might 10, 2028.
Facility Assessments
The Ultimate Rule additionally expands Facility Evaluation necessities, including “behavioral well being” to the checklist of points that amenities should handle through the Facility Evaluation course of, and requiring energetic participation within the evaluation course of by nursing house management and administration, direct care employees, residents, resident representatives, and members of the family. All amenities – whether or not rural or non-rural – might want to incorporate the brand new Facility Evaluation necessities inside 90 days after publication of the Ultimate Rule.[2]
Enforcement
CMS anticipates utilizing a mixture of PBJ knowledge and on-site surveys to evaluate compliance with the Ultimate Rule and can publish detailed data on the evaluation course of in sub-regulatory filings. Amongst different penalties, CMS might terminate supplier agreements, deny fee for brand new admissions and/or impose civil financial penalties for noncompliance. CMS additionally harassed its dedication to “robustly funding the survey, certification, and enforcement packages,” noting the President’s FY 2025 finances requires a rise in funding for this function.
Ultimate Ideas
It is vitally doubtless that long-term care associations are making ready to file lawsuits to forestall the Ultimate Rule from taking impact. As well as, at the least one invoice has been launched within the U.S. Senate aimed toward stopping implementation and enforcement of the Ultimate Rule. Whereas amenities ought to take steps to satisfy the staffing necessities over the long-term and, extra instantly, to include the brand new Facility Evaluation necessities, keep watch over additional Sheppard Mullin Healthcare Blogs for up to date data.
In case you have any questions concerning the Ultimate Rule, please contact a member of the Sheppard Mullin Healthcare Crew.
FOOTNOTES
[1] The Ultimate Rule is on file on the Federal Register for public inspection. It’s anticipated to be formally revealed on Might 10, 2024.
[2] Ninety days after Might 10, 2024 is Thursday, August 8, 2024.
