The White House continues to disappoint with its release of the final staffing rule today. It’s not possible to implement this rule. The nurses and nurse aides are not available, and there is no funding.

As disappointing as this is, rest assured that the fight has just begun. We will take our case to Congress and seek relief. In addition, it is very likely that the Board will instruct us to take this battle to the courts.

CMS today also released the Medicaid access and Medicaid managed care final rules. Our team is reviewing these rules, and we will share summaries soon.

MAJOR COMPONENTS OF THE RULE

Staffing Standard

The staffing standards are different than the proposed rule. Unfortunately, they are worse. There are now three components.

1. There is an overall minimum standard of 3.48 total nurse staff hours per resident day (HPRD).
2. Within the 3.48 HPRD, a minimum 0.55 hours must be delivered by RNs and 2.45 hours must be provided by CNAs. For the remaining 0.48 hours, we can count any combination of CNAs, RNs, and LPN/LVNs.
3. There is a requirement for an RN onsite in every building 24 hours a day, 7 days a week.

Phase In

Different parts of the rule go into effect at different times, based on whether a building is urban or rural.

1. The 24/7 RN requirement goes into effect in urban areas in two years and in rural areas in three years.
2. The 3.48 overall staffing requirement goes into effect in urban areas in two years and in rural areas in three years.
3. The 0.55 RN and 2.45 CNA requirement goes into effect in urban areas in three years and rural areas in five years.
4. All facilities must meet new facility assessment requirements within 90 days of the final rule publication.

Waivers

There are waivers, but we are skeptical that providers will qualify. These include:

1. For the 24/7 RN requirement, there are two options. First is the existing RN waiver process for SNFs, which is only available to rural facilities that meet the criteria. This waiver is subject to annual review. Second is the hardship exemption, which has extensive criteria including local workforce supply, good faith efforts to hire, and demonstrated financial commitment. The term of the hardship exemption is until the next standard recertification survey.
2. For the HPRD requirements, there is a hardship exemption option, which requires a facility to be found noncompliant and has extensive criteria – including local workforce supply, good faith efforts to hire, and demonstrated financial commitment. The term of the hardship exemption is until the next standard recertification survey.

Funding

There is no funding for the additional staff. This is only one of the reasons that the policy is not possible to implement.

CMS estimates the total cost of the rule at $43 billion over 10 years – or about $4.3 billion per year. We believe it is closer to more than $6 billion per year. There are no provisions requiring Medicare, Medicaid, or other payors to increase payment rates to providers for any of the rule requirements.

Penalties

CMS will publish more details on how compliance will be assessed and how enforcement remedies will be imposed after the publication of this final rule in advance of each implementation date for the different components of the rule.

WHAT COMES NEXT

We realize that it is not possible to implement this rule. This is not a serious policy. This is all about politics. We are not about to let you, your employees, and your residents to be used as political pawns. We will take our case to the courts and Congress, and I remain confident that we will ultimately prevail.

For that to happen, we need your help. We need you to let your members of Congress and Senators know how impossible this proposal is to implement. Congressional Briefing is the perfect time to do that. Join hundreds of your fellow providers from across the country on June 3 & 4 in Washington, D.C. as we work to reverse this impossible policy.

Mark Parkinson
President & CEO, AHCA/NCAL