Monthly Archives: October 2023

FLORIDA BOARD OF NURSING RULE DEVELOPMENT WORKSHOP

The Department of Health, Board of Nursing has given notice of an upcoming Rule Development Workshop.  On July 1, 2023, a new law went into effect that amended Florida Statutes 400.211, 400.23, 464.0156, and 464.2035.  Chapter 400 of the Florida Statutes regulates nursing homes and Chapter 464 regulates the practice of nursing.

The legislature created a new designation of “qualified medication aide” (QMA) for certified nursing assistants (CNA) who work in a nursing home and meet specified additional licensure and training requirements. With this new law, a nursing home is authorized to allow a registered nurse (RN) working in the nursing home to delegate medication administration and associated tasks to a QMA who is working under the direct supervision of the RN.  Prior to the new law, CNAs were authorized to administer oral, transdermal, ophthalmic, otic, rectal, inhaled, enteral, or topical prescription medication to a patient of a home health agency or to a patient in a county detention facility.  This new law has now authorized administration of the above medications and associated tasks by a QMA, except for rectal and enteral, to a resident in a nursing home facility.

In order to be designated as a QMA, a CNA must hold a clear and active certification as a CNA for at least one year preceding the delegation; complete 40 hours of training that consists of the six-hour training course currently required for a CNA to administer medication in a home health setting and a 34-hour course developed by the Board of Nursing (BON) specific to QMAs; and successfully complete a supervised clinical practice in medication administration conducted in the nursing home.
The Board proposes that the following Florida Administrative Code Rules will require amendment to implement the statutory changes:

Chapter 14: Delegation to Unlicensed Assistive Personnel
Rule 64B9-14.0015 Delegated Tasks

Chapter 15: Certified Nursing Assistants
Rule 64B9-15.001 Definitions
Rule 64B9-15.002 Certified Nursing Assistant Authorized Duties
Rule 64B9-15.0025 CNA Medication Administration
Rule 64B9-15.0026 Medication Administration Outside the Scope of Practice of a CNA

Chapter 16: LPN Supervision in Nursing Home Facilities
Rule 64B9-16.001 Definitions
Rule 64B9-16.002 Supervision by Licensed Practical Nurses in Nursing Home Facilities
Rule 64B9-16.004 Delegation of Tasks Prohibited

The Florida Health Care Association has submitted a proposed training curriculum for certification to become a QMA as well as suggestions for the revisions to the above Rules to implement the statutory changes.  The submission can be found in the public book available on the Board of Nursing’s website along with the proposed agenda at the below link.
https://floridasnursing.gov/meeting-information/

The preliminary text of the proposed rule is not available.
The workshop is scheduled for Thursday, October 26, 2023, 9:00 a.m., E.D.T., or as soon thereafter as can be heard.
Toll Free Number 1(888)585-9008, Conference Room ID: 275-112-502#

OPPORTUNITY TO PROVIDE COMMENTS TO AHCA ON MANAGED CARE PROVIDERS

Today, the Florida Agency for Health Care Administration (AHCA) announced that it is soliciting comments from health care providers regarding any issues or concerns with existing Managed Care Plan providers under the Statewide Medicaid Managed Care Program.   This is your opportunity as a health care provider directly impacted by the Medicaid Managed Care Plans to voice any problems, concerns, or suggestions.  This announcement is part of AHCA’s ongoing re-procurement  under the Statewide Medicaid Managed Care program.  AHCA will consider your comments in the process of making awards to Managed Care Organizations and Provider Service Networks in each Region of the State.   This process was mandated under a legislative amendment that requires AHCA to solicit comments.

BACKGROUND ON STATEWIDE MEDICAID MANAGED CARE PROGRAM

The State of Florida has offered Medicaid services since 1970. Medicaid is funded by both the state and federal government to provide health care coverage for eligible children, seniors, disabled adults, and pregnant women. The annual budget for the program is more than $38 billion and makes up the largest part of the total Florida budget. The 2011 Florida Legislature originally adopted the legislation (now Part IV of Chapter 409, Florida Statutes) to create and establish the Florida Medicaid program as a statewide, integrated managed care program for all covered Medicaid services, including long-term care services. This program is referred to as Statewide Medicaid Managed Care (SMMC) and includes three programs: Managed Medical Assistance (MMA), Long-term Care (LTC), and Dental. The 2022 Florida Legislature passed Senate Bill 1950 (amending part IV of Chapter 409, Florida Statutes) to reallocate Medicaid regions, direct the Agency to conduct a single statewide procurement for the SMMC program, and ensure a minimum number of managed care plans per Medicaid region. More than 4.4 million Floridians are enrolled in Florida’s SMMC program.

COMMENTS TO BE CONSIDERED IN SELECTING NEW MEDICAID MANAGED CARE PLANS AND PROVIDER SERVICE NETWORKS

Based on the 2022 legislative amendment, AHCA is not required to consider comments from health care providers that operate in an area covered by on  the existing Plans.  The Invitation to Negotiate provides:

“ a. Pursuant to Section 409.966(3)(a)8., Florida Statutes, the Agency will consider comments in writing by any enrolled or registered Medicaid provider relating to a respondent that has submitted a response to this solicitation in the same region in which the provider is located and rendering services. b. The Agency will publish a list of respondents and instructions for how providers may submit comments to this solicitation within two (2) business days of the public opening at: https://ahca.myflorida.com/procurements. c. The Agency will utilize an online survey tool for the collection of the provider comments. The online survey tool will remain open and active for a period of ten (10) business days. d. Providers must submit comments to the Agency through the published survey tool by the date/time indicated in Section A., Overview, Sub[1]Section 6., Solicitation Timeline and as outlined on the Agency’s website.

Today’s Announcement provides  that comments must be submitted no later than November 9, 2023 by 5 PM.  Comments are submitted through an on-line survey tool.  For additional information, or assistance in submitting comments, please contact us.

PROPOSED FEDERAL RULE AMENDMENT

The Department of Health and Human Services (“HHS”) and The Centers for Medicare and Medicaid Services (“CMS”)

As part of the Biden-Harris Administration’s Nursing Home Reform initiative, and because Federal nursing home staffing laws have not been updated since 1987, HHS and CMS have announced a proposed rule amendment to 42 CFR parts 438, 442, and 483 to ensure safe and quality care in long-term care facilities.  This focuses on the proposed amendments to 42 CFR 483 regarding minimum nurse staffing requirements.

  • Minimum Staffing Standards for Long-Term Care Facilities (42 CFR 483)
  • The proposed rule establishes minimum nurse staffing standards in nursing homes as follows:
    • Minimum nurse staffing standards of 0.55 hours per resident day (“HPRD”) for Registered Nurses (“RN”s).
    • HHS evaluated State nurse staffing requirements and noted that the proposed RN requirement is higher than every State and only lower than the District of Colombia based on September 2022 data.
    • Minimum of 2.45 HPRD for Nurse Aides (“NA”s).
    • HHS noted that the proposed NA staffing requirement also is higher than every State and only lower than the District of Colombia based on September 2022 data.
    • A requirement to have an RN onsite 24 hours a day, seven days a week.
  • HHS expects facilities to staff above these minimum baseline levels to address the specific needs of their unique resident population based on the facility assessment and resident acuity levels.
    • Federal regulations currently require LTC facilities to use the services of an RN for at least 8 consecutive hours a day, 7 days a week (§483.35(b)(1)).
    • The LTC facility must also designate an RN to serve as the Director of Nursing (“DON”) on a full-time basis (§483.35(b)(2)).
  • These Federal requirements specify a number of hours that these licensed nurses and other nursing personnel must be available; however, there is no requirement that those hours be specifically dedicated to direct resident care.
  • To meet these proposed new standards HHS estimates that approximately three quarters of nursing homes would have to strengthen staffing in their facilities in order to comply.  HHS is proposing options for exemptions and a staggered implementation of the proposed requirements to alleviate challenges due to the nursing workforce.
  • HHS is seeking public comments regarding the proposed rules, including viable alternatives to the proposed staffing standards that will ensure safe and quality care for the over 1.2 million residents receiving care in Medicare and Medicaid-certified LTC facilities each day.
  • Florida’s minimum staffing requirements.
  • The Florida minimum staffing requirements include “direct care staff” as defined in F.S. 400.23 (3)(a)1. a. “Direct care staff” means persons who, through interpersonal contact with residents or resident care management, provide care and services to allow residents to attain or maintain the highest practicable physical, mental, and psychosocial well-being, including, but not limited to, disciplines and professions … in the categories of direct care services of nursing, dietary, therapeutic, and mental health. The term does not include a person whose primary duty is maintaining the physical environment of the facility, including, but not limited to, food preparation, laundry, and housekeeping.
  • It must be noted that Federal rule §442.43(a)(2) defines “Direct Care Worker” in a somewhat similar fashion; however, these direct care workers are not included in the proposed minimum nurse staffing numbers.
  • Pursuant to F.S. 400.23(3)(b), the minimum staffing requirements are as follows:
    • A minimum weekly average of 3.6 hours of care by direct care staff per resident per day.
    • A minimum of 2.0 hours of direct care by a certified nursing assistant per resident per day. A facility may not staff below one certified nursing assistant per 20 residents. (It must be noted that Florida revised the CNA standard from 2.45 to 2.0 in April 2022.)
    • A minimum of 1.0 hour of direct care by a licensed nurse per resident per day. A facility may not staff below one licensed nurse per 40 residents. (It must be noted that Florida’s requirements only specify “licensed” nurse (which would include RNs and LPNs) rather than specifying an RN as required by the proposed Federal rule (which HHS purposefully proposed so that facilities do not have the flexibility to decide between types of licensed nurses to meet the minimum)).
    • Nursing assistants employed under s. 400.211(2) (reflected in Federal rule §483.35(d)(1)) may be included in computing the hours of direct care provided by certified nursing assistants and may be included in computing the staffing ratio for certified nursing assistants if their job responsibilities include only nursing-assistant-related duties.
    • Certified nursing assistants performing the duties of a qualified medication aide under s. 400.211(5) may not be included in computing the hours of direct care provided by, or the staffing ratios for, certified nursing assistants or licensed nurses.
  • Additionally, Rule 59A-4.108, Florida Administrative Code, requires the following with regard to nursing services in nursing homes:
    • There shall be a DON who shall be responsible and accountable for the supervision and administration of the total nursing services program.
    • The DON must designate one licensed nurse on each shift to be responsible for the delivery of nursing services during that shift.
  • Effect of Proposed Federal Rule to Florida LTC Facilities
  • To meet the proposed requirement that the facility have an RN on duty 24 hours a day 7 days a week:
    • HHS has estimated that Florida will require an additional 8 nurses in rural areas and an additional 21 nurses in urban areas to meet this requirement.
    • To meet the proposed requirement of 0.55 HPRD for RNs:
    • HHS has estimated that Florida will require an additional 51 RNs in rural areas and an additional 390 RNs in urban areas.
    • To meet the proposed requirement of 2.45 HPRD for NAs:HHS has estimated that Florida will require an additional 23 NAs in rural areas and an additional 414 NAs in urban areas.
  • Comment Submission for the CMS Proposed Rule.
  • There are varying staffing models that are available and different approaches that HHS could have adopted for the proposed minimum nurse staffing requirement such as separate requirements for RNs, LVNs/LPNs, and NAs or defining requirements for licensed nurse staffing, that is, combining RNs and LVNs/LPNs or creating standards for NAs only.  Alternatively, HHS could have adopted non-nurse staffing requirements such as social workers, therapists, feeding assistants and other non-nurse staffing types in the minimum staffing requirement.
  • Ultimately HHS chose the comprehensive 24/7 RN and 0.55 RN and 2.45 NA HPRD requirements to strike a balance between ensuring resident health and safety, while preserving access to care, including discharge to community-based services.
  • HHS welcomes comments, and specifically on the following questions:
    • Does your facility, or one you are aware of, have an RN onsite 24 hours a day, 7 days a week? If not, how does the facility ensure that staff with the appropriate skill sets and competencies are available to assess and provide care as needed?
    • If a requirement for a 24 hour, 7 day a week onsite RN who is available to provide direct resident care does not seem feasible, could a requirement more feasibly be imposed for a RN to be “available” for a certain number of hours during a 24 hour period to assess and provide necessary care or consultation provide safe care for residents? If so, under what circumstances and using what definition of “available”?
    • Should the DON be counted towards the 24/7 RN requirement or should the DON only count in particular circumstances or with certain guardrails? Please explain why or why not.
    • Are there alternative policy strategies that we should consider to address staffing supply issues such as nursing shortages?
    • The comment period is open for a sixty-day period that expires on November 6, 2023.  More information on how to submit comments or to review the entire rule, can be found at this link: https://www.federalregister.gov/documents/2023/09/06/2023-18781/medicare-and-medicaid-programs-minimum-staffing-standards-for-long-term-care-facilities-and-medicaid