The personnel rule is irresponsible and impossible to implement

The White House continues to disappoint with the release of the final personnel rule today. It is not possible to implement this rule. The nurses and nursing assistants are not available and there is no funding.

As disappointing as this is, you can rest assured that the fight has only just begun. We will present our case to Congress and seek relief. In addition, there is a good chance that the Board will instruct us to take this battle to court.

CMS today also released the final rules for access to Medicaid and Medicaid Managed Care. Our team is reviewing these rules and we will share summaries soon.

KEY PARTS OF THE RULE

Personnel standard

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

1. There is a general minimum standard of 3.48 total nursing staff hours per day of stay (HPRD).
2. Within the 3.48 HPRD, a minimum of 0.55 hours must be provided by RNs and 2.45 hours 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 on site in each building, 24 hours a day, 7 days a week.

Phase in

Different parts of the rule take effect at different times depending on whether a building is urban or rural.

1. The 24/7 RN requirement will take effect in two years in urban areas and three years in rural areas.
2. The total workforce requirement of 3.48 will come into effect in two years in urban areas and in three years in rural areas.
3. The requirement of 0.55 RN and 2.45 CNA will come into effect within three years in urban areas and within five years in rural areas.
4. All facilities must comply with the new facility assessment requirements within 90 days of publication of the final rule.

Waivers

There are exemptions, but we are skeptical whether providers qualify for them. These include:

1. For the 24/7 RN requirement, there are two options. First, there is the existing RN waiver process for SNFs, which is only available to rural facilities that meet the criteria. This exemption is subject to an annual evaluation. Second, there is the hardship exemption, which has extensive criteria, including supply of local labor, good faith efforts to recruit, and demonstrated financial commitment. The term of the hardness exemption is until the next regular recertification inspection.
2. For HPRD requirements, there is a hardship waiver option, where a facility is found to be non-compliant and has extensive criteria, including supply of local personnel, good faith efforts to recruit, and demonstrated financial commitment. The term of the hardness exemption is until the next regular recertification inspection.

Financing

There is no money for additional staff. This is just one of the reasons that the policy is not feasible.

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

Sanctions

CMS will publish more details on how compliance will be assessed and how enforcement actions will be imposed for the various components of the rule following the publication of this final rule, in advance of each implementation date.

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 do not intend to allow you, your employees and your residents to be used as political pawns. We will present our case to the courts and Congress, and I remain confident that we will ultimately win.

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

Mark Parkinson
Chairman and CEO, AHCA/NCAL