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An Act To Promote Greater Staffing Flexibility without Compromising Safety or Quality in Nursing Facilities
Emergency preamble. Whereas, acts and resolves of the Legislature do not become effective until 90 days after adjournment unless enacted as emergencies; and
Whereas,  Maine's typical nursing facility resident reflects an acuity that is among the highest in the country; and
Whereas,  Maine's minimum staffing rules were established years ago when resident acuity was vastly different from today; and
Whereas,  the current minimum staffing rules do not require nursing facilities to staff based on resident acuity or need; and
Whereas,  establishing acuity-based staffing standards would give providers patient-centered staffing flexibility, a benchmark for staffing to resident need, a threshold for quality and safety that relates to Maine's high resident acuity and a basis for a more appropriate allocation of resources according to resident need; and
Whereas,  the acuity measurement tools used to achieve acuity-based staffing are already required and being used by all Maine's nursing home providers and can be easily translated to nationally established quality thresholds in support of acuity-based staffing in addition to state oversight; and
Whereas,  in the judgment of the Legislature, these facts create an emergency within the meaning of the Constitution of Maine and require the following legislation as immediately necessary for the preservation of the public peace, health and safety; now, therefore,
Be it enacted by the People of the State of Maine as follows:
Sec. 1.  22 MRSA §1812-C, sub-§5-A  is enacted to read:
 
5-A.  Required staffing pattern.     A staffing pattern in a nursing home must be in conformity with this subsection and with rules adopted by the department. Rules adopted pursuant to this subsection are major substantive rules as defined in Title 5, chapter 375, subchapter 2-A.
 
A.  The rules adopted by the department must specify the number of hours of nursing care per patient day to achieve minimum staffing standards, based on a 24-hour period of time, required to meet resident needs and to meet thresholds for safety, quality and the prevention of resident harm.
 
B.  The rules adopted by the department must also specify that the number of hours of nursing care required to meet resident needs be specific to resident acuity as determined by the resource utilization group category that is assigned to each resident.
Sec. 2. Rulemaking. The Department of Health and Human Services shall adopt rules to implement this Act. Notwithstanding the Maine Revised Statutes, Title 22, section 1812-C, subsection 5-A, the initial rules adopted by the department to implement this Act are routine technical rules as defined in Title 5, chapter 375, subchapter 2-A; any amendments to the initial rules adopted pursuant to this Act are major substantive rules in accordance with Title 22, section 1812-C, subsection 5-A. The initial rules adopted by the department to establish nursing home staffing ratios must be in accordance with this section.
1. The required hours of care by a registered nurse, licensed practical nurse and certified nursing assistant and the total hours of care per patient day for each resource utilization group category must be derived from the national nursing home staff time measurement study, known as the "Staff Time and Resource Intensity Verification project," initiated by the federal Centers for Medicare and Medicaid Services and adjusted upwards to reflect the State's acuity.
2. The State's upward acuity adjustment and staffing threshold must be derived by adding a uniform measure of times expressed in terms of hours per patient day to each resource utilization group category that ensures that the total nursing hours per patient day are not lower than that level that, according to data from the federal Centers for Medicare and Medicaid Services' online survey, certification and reporting system, reflects higher levels of deficiencies for resident harm than is approved by the Department of Health and Human Services and the long-term care ombudsman program established pursuant to the Maine Revised Statutes, Title 22, section 5106, subsection 11-C.
3. A nursing home must apply its actual census and resident-specific hours per patient day per resource utilization group score derived pursuant to subsection 2 to establish its facility-specific staffing threshold on a daily basis.
4. Survey and oversight procedures must include a tool for collecting resident census and resident acuity according to resource utilization groups, and compare the facility-specific staffing threshold with actual staffing.
5. A nursing home shall submit staffing information and data to the Department of Health and Human Services at the request of the department.
Emergency clause.  In view of the emergency cited in the preamble, this legislation takes effect when approved.
 
SUMMARY
Currently, nursing home staffing ratios are calculated based on individual 8-hour shifts. This bill requires the Department of Health and Human Services to adopt acuity-based staffing, calculated over a 24-hour period and tied to a quality and safety threshold established by federally gathered data relevant to resident harm. Nursing homes would still ultimately be required to staff according to residents' needs.
The bill provides that changes to the licensing rules are major substantive rules.