CMS Releases Final Rule on BIPA Staffing Posting

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On Friday, October 28, 2005, the Centers for Medicare and Medicaid Services (CMS) released its final rule that requires skilled nursing facilities (SNFs) and nursing facilities (NFs) to post daily staffing information, including the total hours worked each day by nursing staff who are directly responsible for resident care.[1]  Long-term care facilities had been operating under CMS’s February 27, 2004 proposed rule, requiring them to: (1) On a daily basis, use a CMS-specified form at the end of each shift to indicate the number of full-time equivalent (FTEs) registered nurses (RNs), licensed practical nurses (LPNs), licensed vocational nurses (LVNs), and certified nurse aides (CNAs) directly responsible for resident care; (2) verify or determine the resident census on a daily basis; (3) post the completed form in a prominent place readily accessible to residents and visitors; (4) make the form available to the public upon request; and (5) maintain the forms for a minimum of 3 years. The final rule makes a number of changes to the proposed nurse staffing rule.

CMS has changed the reporting requirement in the rule from posting based upon full time equivalents (FTEs) to posting based on actual staff.   In the comments on the rule, a number of parties raised issues with the use of FTEs.  Commenters stated that the use of FTEs was beyond the scope of the underlying law, that it was difficult for facilities, and also confusing to families.  Commenters argued FTEs are confusing because using FTEs may not accurately represent the number of actual staff providing care during a given time period.  Therefore, CMS changed the final rule and now will require facilities to post the number of nursing staff providing direct care to residents during each shift and the actual hours worked by the staff during each shift.[2]  The final rule does maintain the requirement that the facility break out the posted information by category of staff (i.e., RN, LPN or LVN, and CNA).  CMS believes that the posting by category provides consumers with important knowledge about the training and education of the facility’s staff. Interestingly, CMS again states in the final rule commentary, as it did in the preamble of the February 27, 2004 proposed rule, that it does not believe sufficient evidence exists to warrant minimum nurse staffing ratio requirements.  Several commenters had asked CMS to adopt such a requirement.

In the final rule, CMS also clarifies several terms applicable to the reporting provisions.  It defines the term “directly responsible for resident care’’ to mean that “an individual is providing direct care to residents or is directly responsible for care provided to residents.”[3]  In its response to comments, CMS explains that some or all responsibility for aspects of the residents’ care, as well as resident contact, is “an intrinsic part of direct care.”   CMS goes on to say that ‘‘directly responsible for resident care’’ includes, but is not limited to, such activities as assisting with activities of daily living (ADLs), performing gastro-intestinal feeds, giving medications, supervising the care given by CNAs, and performing nursing assessments to admit residents or notify physicians about a change in condition. For example, a RN entering and submitting MDS data for the day would not be regarded as providing direct care. However, if that same RN is providing resident care, then the hours worked by the RN in the unit would be included in the posted data.

CMS maintains in the final rule the requirement to post resident census information.   CMS rejected comments that resident acuity level be posted, but explained that it felt it important for consumers to have information about the number of residents in the facility to provide a context for understanding of the nurse staffing data. CMS believes that the posting of census information to date has helped address families’ questions regarding the number of staff working at a given time. Under the final rule, the facility must post the census at the beginning of each shift.  For example, the 7am to 3pm shift would post the census at 7am and so forth. In most facilities, the census data can be obtained from the shift report that nursing supervisors give to the next shift. If any of the posted staffing information changes during the shift, updated information must be posted as soon as possible.

One of the biggest changes in the final rule is CMS’s elimination of the requirement that all facilities use a CMS-specified form (Daily Nurse Staffing Form).  Approximately 90% of the commenters had concerns or objections to the CMS form, especially because many facilities have overlapping and/or non-standard shift schedules.  Therefore, under the final rule, CMS is giving facilities the flexibility to develop their own documents for displaying the required information.  Facilities may use a spreadsheet or other electronic medium to track and produce the posting information, so long as the form is displayed in a clearly visible place as required under the rule. The information must be posted within the facility in a “prominent place readily accessible to residents and visitors.”[4]  Further, the information on the document should be displayed in a “uniform manner” and presented in a clear and readable format. CMS does not go further in the rule announcement to define the format, but its responses to comments indicate that the touchstone from a compliance (and survey) standpoint will be the ability for the information to be understood by residents, families and the public.  Facilities will still have to make hard copies of the staffing document available to families and the public, if requested.[5]  The provisions for doing so are the same as the provisions for providing copies of surveys and resident records.[6] 

The final rule continues the requirement that facilities maintain the posted staffing information.   However, in response to many comments critical of the 3-year retention period in the proposed rule, CMS reduced the retention period to 18 months. State law may still specify a longer retention period.  CMS believes that period provides a long enough time for surveyors to review the staffing as part of the survey process, which usually occur nine to fifteen months apart.  It also provides a reasonable period of time for consumers to meaningfully examine the facility staffing patterns. 

The final rule becomes effective Dec. 27, 2005.   Long-term care providers should review the new provisions of the final rule and ensure that they understand the changes from the proposed rule to the final rule.  They also need to ensure that the facility’s process for posting this information complies with what the final rule requires. In some cases, the facility may want to work with outside counsel to ensure that the process and policies for providing the information and the design of the facility’s format that provides information are both convenient for the facility and useable for residents and their families.  Since the information is available to the public on request, it is also available to surveyors and in legal actions against the facility.  The facility may wish to talk with counsel as a preventative risk management measure.  Counsel can help the facility to develop and implement practices that avoid a process that inaccurately reports the staffing information.  Erroneous posting information can result in various problems down the road for the facility, either with surveyors, federal fraud and abuse enforcement agencies, or private counsel for a resident in a lawsuit against the facility. 



[1]  The final rule can be accessed on the internet at  http://a257.g.akamaitech.net/7/257/2422/01jan20051800/edocket.access.gpo.gov/2005/pdf/05-21278.pdf

[2]  70 Fed. Reg. 62067 (October 28, 2005)

[3]  70 Fed. Reg. 62068 (October 28, 2005)

[4]  42 C.F.R. 483.30(e)(2)(ii), effective December 27, 2005.

[5]  42 C.F.R. 483.30(e)(3), effective December 27, 2005.  The request can be oral or written.

[6]  See 42 C.F.R. 483.10(b)(2).

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