CMS issued its Proposed Rule for Minimum Staffing Standards for Long-Term Care Facilities and Medicaid Institutional Payment Transparency Reporting back in September 2023. Industry stakeholders made their voices heard by submitting 46,520 comments on what this unfunded staffing mandate would do to an industry still recovering from the effects of the COVID-19 public health emergency, inflation, and severe staffing shortages. Despite these concerns, CMS has recently issued a final rule that establishes minimum staffing standards to ensure safety and quality concerns for residents in Medicare and Medicaid certified long-term care (LTC) facilities. This rule provides no additional funding to pay for this mandate. The full proposed rule can be found at the Federal Register.
Staffing Requirements
This rule will require nursing facilities to meet four daily staffing requirements to be considered in compliance:
- A minimum of 3.48 total nurse staffing hours per patient day (HPRD)
- This includes RNs, LPNs/LVNs, and nurse aides (NAs)
- A minimum of 0.55 RN HPRD
- A minimum of 2.45 NA HPRD
- An RN on site 24 hours per day/seven days a week
Director of Nursing (DON) hours may count for the 24 hour/7 day a week and 0.55 RN HPRD coverage if available to provide direct care.
Exemptions for RN & HPRD Requirements
Exemptions for the minimum staffing HPRD standards and RN on-site coverage will be available only in limited circumstances once the facility has been determined to be noncompliant with the staffing requirements. The following criteria must be met to qualify:
- Local workforce per labor category must be 20% below the national average for the applicable nurse staffing type as calculated by CMS;
- Facility must be making good faith efforts to hire and retain staff;
- Facility must provide documentation of its financial commitment to staffing;
- The facility must post notice of its exemption status in a prominent and publicly viewable location in the facility, the extent to which the facility does not meet the minimum staffing requirement and the time frame for which the exemption applies;
- The facility must provide individual notice of its exemption status and the degree to which it is not in compliance with the HPRD requirements to each current and prospective resident or resident representative; and
- The facility must send a copy of the notice to a representative of the Office of the State Long-Term Care Ombudsman
Facilities that qualify for exemption with the 24/7 RN requirement will be exempt of eight hours a day from the requirement but must have a registered nurse, nurse practitioner, physician assistant, or physician available to respond immediately to telephone calls during the exempt hours.
Granted exemptions will be extended on each standard recertification survey if the facility continues to meet the exemption criteria.
Facilities will not be eligible for an exemption if (1) they have failed to submit payroll-based journal (PBJ) data, (2) they have been designated as a Special Focus Facility (SFF), (3) they have been cited for widespread insufficient staffing resulting in actual harm or a pattern of insufficient staffing with resultant resident actual harm, or (4) have been cited at the “immediate jeopardy” level of severity with respect to insufficient staffing within the last 12 months preceding the survey during which the facility’s noncompliance is identified.
Granted exemptions will be posted on the CMS Care Compare site, along with the degree to which the facility is not in compliance with the requirements.
Facility Assessments
The existing Facility Assessment will be revised to ensure that the facility uses “evidence-based, data-driven methods” to ensure ongoing care for its population based on the specific care needs of its residents. LTC facilities will need to incorporate the input of facility staff and their representatives (nursing home leadership, management, direct care staff, and other service workers) into their facility assessment. The assessment also will need to include staffing decisions to ensure that a sufficient number of staff with the appropriate competencies and skill sets are available and adjusted as necessary to care for their resident population with a plan to maximize and retain qualified staff.
Implementation Time Frames
A multistage implementation process, as outlined below, will be utilized for the above requirements to allow facilities (rural and nonrural) to prepare:
| Requirement | Urban Areas | Rural Areas |
|---|---|---|
| Facility Assessment | 90 days after publication of Final Rule (August 8, 2024) | 90 days after publication of Final Rule (August 8, 2024) |
| 3.48 HPRD and 24/7 RN | 2 years after publication of Final Rule (May 10, 2026) | 3 years after publication of Final Rule (May 10, 2027) |
| 0.55 RN and 2.45 NA HPRD | 3 years after publication of Final Rule (May 10, 2027) | 5 years after publication of Final Rule (May 10, 2029) |
Enforcement
As with other LTC requirements, enforcement actions—also known as remedies—may be taken against facilities that are not in substantial compliance with the above requirements. Remedies may include—but will not be limited to—termination of the provider agreement, denial of payment for new admissions, and/or civil money penalties. CMS has not provided specific details but foresees using a combination of PBJ data and surveys to assess compliance with these staffing standards.
The industry is concerned that a very low percentage of nursing homes currently meet these requirements. Some have stated that the additional workforce does not exist, and providers cannot afford to implement these staffing mandates without additional funding. Industry stakeholders will continue to make their voices heard. If you have any questions about this Final Rule for Minimum Staffing Requirements for Long-Term Care Facilities or the impact on your individual organization, please reach out to one of our professionals.