September 13, 2022

Ask the legal expert: What can we expect from a staffing minimum?

Written By

Norris Cunningham
Member, Stoll Keenon Ogden PLLC

Q: What can we expect out of the Centers for Medicare & Medicaid Services’ intention to issue new guidance on minimum staffing measures for nursing homes?

A: Frankly, it means trouble. To begin addressing the minimum staffing requirement, CMS added new requirements for surveyors to incorporate the use of Payroll Based Journal staffing data in their inspections.

This will identify potential noncompliance with CMS nurse staffing requirements, such as lack of a registered nurse for eight hours each day, or lack of licensed nursing for 24 hours a day. This guidance aims to uncover instances of insufficient staffing and will, allegedly, yield higher quality care.

CMS also intends to issue a proposal in 2023 on a minimum staffing measure. In April, CMS issued its 2023 Skilled Nursing Facility Prospective Payment System Proposed Rule. It was then CMS announced it was seeking input on the effects of direct care staffing rules to improve the LTC requirements for participation and promote thoughtful, informed staffing plans and decisions within facilities.

CMS received more than 3,000 comments on the rule, with one-third calling on CMS to consider current staffing shortages and provide more financial resources to facilities before even considering a minimum staffing standard.

Apparently, the commenters are better than CMS when it comes to comprehending the folly of imposing minimum staffing levels without adequate remedies to address structural issues causing staffing shortages. They recognize those structural issues existed long before COVID-19 and have only been exacerbated by the pandemic.

We should expect that any minimum staffing requirements will further burden operators and embolden trial lawyers who seek to exploit these requirements to inflame juries.

*** From the September 2022 Issue of McKnight’s Long-Term Care News

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