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CMS Requests Input on the Implementation of a Minimum Staffing Standard and Equity Measures

April 28, 2022

On April 15, 2022, the Center for Medicare & Medicaid Services (CMS) published a Notice of Proposed Rule Making (NPRM) that included requests for information regarding the implementation of a minimum staffing standard in nursing homes and input on measuring health disparities in resident outcomes. The request for information follows the Biden Administration’s February 28, 2022 proposal of significant nursing home reforms. CMS states it plans to propose a minimum staffing standard within one year.

Consumer Voice strongly supports the proposal for a minimum staffing standard and increased attention on disparities in nursing home care. Inadequate staffing is the primary driver of poor health outcomes in nursing homes. As CMS' request for information states, numerous studies have documented the relation between higher staffing and better health outcomes. Too often,  the problems that accompany inadequate staffing fall disproportionately on communities who have historically been marginalized. This fact was evident during the COVID-19 pandemic, where nursing homes whose residents were predominantly people of color were affected disproportionately by COVID-19. 

In its request for information on a minimum staffing standard, CMS poses seventeen questions and asks for public input. It is important that all advocates for nursing home residents take the time to respond to these questions, which are posted below. 

On May 25, 2022 at 3 p.m. EST, advocates from Consumer Voice, Justice in Aging, Long Term Care Community Coalition, California Advocates for Nursing Home Reform, and Center for Medicare Advocacy hosted a webinar providing information and guidance on how to write comments and respond to these questions. Watch the webinar.

Comments are due on June 10, 2022. 

Below you will find the questions regarding a minimum staffing standard and equity measures:

Request for Information Regarding Implementing Staffing Standard

  1. Is there evidence (other than the evidence reviewed in this RFI) that establishes appropriate minimum threshold staffing requirements for both nurses and other direct care workers? To what extent do older studies remain relevant? What are the benefits of adequate staffing in LTC facilities to residents and quality of care?

  2. What resident and facility factors should be considered in establishing a minimum staffing requirement for LTC facilities? How should the facility assessment of resident needs and acuity impact the minimum staffing requirement?

  3. Is there evidence of the actual cost of implementing recommended thresholds, that accounts for current staffing levels as well as projected savings from reduced hospitalizations and other adverse events?

  4. Is there evidence that resources that could be spent on staffing are instead being used on expenses that are not necessary to quality patient care?

  5. What factors impact a facility’s capability to successfully recruit and retain nursing staff? What strategies could facilities employ to increase nurse staffing levels, including successful strategies for recruiting and retaining staff? What risks are associated with these strategies, and how could nursing homes mitigate these risks?

  6. What should CMS do if there are facilities that are unable to obtain adequate staffing despite good faith efforts to recruit workers? How would CMS define and assess what constitutes a good faith effort to recruit workers? How would CMS account for job quality, pay and benefits, and labor protections in assessing whether recruitment efforts were adequate and in good faith?

  7. How should nursing staff turnover be considered in establishing a staffing standard? How should CMS consider the use of short-term (that is, travelling or agency) nurses?

  8. What fields and professions should be considered to count towards a minimum staffing requirement? Should RNs, LPNs/LVAs, and CNAs be grouped together under a single nursing care expectation? How or when should they be separated out? Should mental health workers be counted as direct care staff?

  9. How should administrative nursing time be considered in establishing a staffing standard? Should a standard account for a minimum time for administrative nursing, in addition to direct care? If so, should it be separated out?

  10. What should a minimum staffing requirement look like, that is, how should it be measured? Should there be some combination of options? For example, options could include stablishing minimum nurse HPRD, establishing minimum nurse to resident ratios, requiring that an RN be present in every facility either 24 hours a day or 16 hours a day, and requiring that an RN be on-call whenever an RN was not present in the facility. Should it include any non-nursing requirements? Is there data that supports a specific option?

  11. How should any new quantitative direct care staffing requirement interact with existing qualitative staffing requirements? We currently require that facilities have ‘‘sufficient nursing staff’’ based on a facility assessment and patient needs, including but not limited to the number of residents, resident acuity, range of diagnoses, and the content of care plans. We welcome comments on how facilities have implemented this qualitative requirement, including both successes and challenges and if or how this standard should work concurrently with a minimum staffing requirement. We would also welcome comments on how State laws limiting or otherwise restricting overtime for health care workers would interact with minimum staffing requirements.

  12. Have minimum staffing requirements been effective at the State level? What were facilities’ experiences transitioning to these requirements? We note that States have implemented a variety of these options, discussed in section VIII.A. of this proposed rule, and would welcome comment on experiences with State minimum staffing requirements.

  13. Are any of the existing State approaches particularly successful? Should CMS consider adopting one of the existing successful State approach or specific parts of successful State approaches? Are there other approaches to consider in determining adequate direct care staffing? We invite information regarding research on these approaches which indicate an association of a particular approach or approaches and the quality of care and/or quality of life outcomes experienced by resident, as well as any efficiencies that might be realized through such approaches.

  14. The IOM has recommended in several reports that we require the presence of at least one RN within every facility at all times. Should CMS concurrently require the presence of an RN 24 hours a day 7 days a week? We also invite comment on the costs and benefits of a mandatory 24-hour RN presence, including savings from improved resident outcomes, as well as any unintended consequences of implementing this requirement.

  15. Are there unintended consequences we should consider in implementing a minimum staffing ratio? How could these be mitigated? For example, how would a minimum staffing ratio impact and/or account for the development of innovative care options, particularly in smaller, more home-like settings, for a subset of residents who might benefit from and be appropriate for such a setting? Are there concerns about shifting non-nursing tasks to nursing staff in order to offset additions to nursing staff by reducing other categories of staff?

  16. Does geographic disparity in workforce numbers make a minimum staffing requirement challenging in rural and underserved areas? If yes, how can that be mitigated?

  17. What constitutes ‘‘an unacceptable level of risk of harm?’’ What outcomes and care processes should be considered in determining the level of staffing needed?

Request for Information Regarding Measuring and Addressing Health Care Disparities and Advancing Health Equity

The request for information also contained a lengthy discussion on a framework that could be used to assess disparities in healthcare. The discussion focused on developing measures to explore how social risk factors, such as socioeconomic status, which have historically had a disparate impact on marginalized communities based on race, ethnicity, sexual orientation, rurality, gender, religion and disability. CMS discusses the use of already existing health equity measures developed in other areas, for instance a Health Equity Summary Scores, which uses a variety of quality measures including resident feedback. CMS asks for public comment on specific areas, which can be found on page 22760 of the NPRM. Consumer Voice will be providing advocates with resources to comment on this section of the NPRM, as well.

Where to Submit Comments

Comments can be submitted electronically  or by mail to Centers for Medicare & Medicaid Services, Department of Health and Human Services, Attention CMS-1765-P, P.O. Box 8106, Baltimore, MD 21244-8016.  Find instructions and use Consumer Voice's model comments.


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