CMS Issues Final Rule Mandating New Minimum Staffing Standards for Long-Term Care Facilities
| Footnotes for this article are available at the end of this page. |
On April 22, 2024, The Centers for Medicare & Medicaid Services (“CMS”) issued the “Medicare and Medicaid Programs; Minimum Staffing Standards for Long-Term Care Facilities and Medicaid Institutional Payment Transparency Reporting” Final Rule (the “Final Rule”).1 The stated goal of the rule is to ensure safe and quality care in long-term care facilities. Notably, the rule imposes minimum staffing requirements for long-term care facilities. Additionally, the rule requires states to report the percent of Medicaid payments for certain Medicaid-covered institutional services that are spent on compensation for direct care workers and support staff.
Staffing Requirements
Under the Final Rule, nursing facilities must meet or exceed a minimum of 3.48 hours per resident day (“HPRD”) for total nurse staffing by May 11, 2026, for non-rural facilities and May 10, 2027, for rural facilities.2 Additionally, by May 10, 2027 for non-rural facilities and May 10, 2029, for rural facilities, HPRD must include, but is not limited to: (1) a minimum of 0.55 HPRD for registered nurses; and (2) a minimum of 2.45 HPRD for nurse aides.3 Facilities can use any combination of staff to account for the additional HPRD required to meet the 3.48 HPRD standard.
Moreover, a registered nurse (“RN”) must be onsite 24 hours per day for seven days a week to provide direct resident care by May 11, 2026, for non-rural facilities. Rural facilities have until May 10, 2027, to comply with the same standard.4
Hardship exemptions from the staffing requirements are available, but limited. In order to qualify for an exemption, a facility must meet the following: (1) the workforce has a nursing workforce per labor category that is at least 20% below the national average for applicable nurse staffing type, as calculated by CMS; (2) the facility is making a good faith effort to hire and retain staff; (3) the facility provides documentation of its financial commitment to staffing; (4) the facility posts a notice of its exemption status in a prominent and publicly viewable location in each facility; and (5) the facility provides notice of its exemption status and the degree to which it is not in compliance to each current and prospective resident.5 The facility must also send notice to a representative of the Office of the State Long-Term Care Ombudsman. A facility will be ineligible for an exemption if it: (1) has failed to submit payroll based journal data; (2) is a Special Focus Facility; 3) has been cited with widespread insufficient staffing and resulting resident harm; or 4) has been cited at the “immediate jeopardy” level of severity with respect to insufficient staffing within the 12 months preceding the non-compliant survey.6
Enhanced Facility Assessment Requirements
By August 8, 2024, nursing facilities must implement enhanced facility assessment requirements to determine what resources are necessary to care for its residents.7 The facility must review and update its assessment as necessary, or when there is any change that would require a substantial modification to an assessment, but at least annually.8 The facility assessment must include: (1) the facility’s resident population; (2) the facility’s resources; (3) a facility-based and community-based risk assessment, utilizing an all-hazards approach; (4) a plan to maximize recruitment and retention of direct care staff; and (5) contingency planning for events that do not require activation of the facility’s emergency plan, but have the potential to affect resident care.9
Payment Transparency Reporting
State Medicaid agencies must implement payment transparency reporting by May 10, 2028.10 Payment transparency reporting entails states reporting to CMS the percentage of Medicaid payments spent on compensation for direct care workers and on compensation for support staff annually, by facility. Compensation entails salary, wages, benefits, and the employer share of payroll taxes. Costs for required trainings, travel costs, and costs of personal protective equipment are not compensation for the purposes of the Final Rule.11
Reports must include sufficient information to identify, at the facility level, the percent of Medicaid payments spent on: (1) direct care workers at each nursing facility; and (2) support staff at each nursing facility.12
Enforcement
The new requirements will be surveyed as part of CMS’ existing survey, certification, and enforcement processes for long-term care facilities. Substantial non-compliance with the new requirements may result in remedies under 42 C.F.R. Part 488, including the termination of the provider agreement, denial of payment for new admissions, and/or civil penalties.
CMS also will publish its determinations of facility compliance with the minimum staffing standards on the Care Compare website and require facilities to post a public notice that is easily visible if their facility is out of compliance with the staffing standards.
More details on how compliance will be assessed will be published in advance of each implementation date for different parts of the Final Rule.
Observations
The requirements of the Final Rule have the potential to increase quality of care by reducing staff burnout and turnover and promoting more consistent care, as well as increasing public transparency in relation to Medicaid payments. CMS is investing $75 million to launch a national Nursing Home Staffing Campaign to increase the number of staff in nursing homes. CMS also will provide financial incentives for nurses to work in a nursing home environment, such as tuition reimbursement, which CMS anticipates will begin in 2025.
Despite these efforts, however, many are concerned that staffing mandates will exacerbate existing problems with reliance on agency staff to fill gaps in staffing. Further, the penalties for non-compliance may result in the closure of facilities resulting in displacement of residents who may need to be admitted to facilities miles away from loved ones.
The impact of the rule will depend on CMS’ enforcement strategy and the success of the Nursing Home Staffing Campaign. Either way, nursing homes should begin developing a forward-thinking strategy for compliance with the Final Rule.
[2] 42 C.F.R. § 483.35(b)(1).
[3] 42 C.F.R. § 483.35(b)(1)(i)-(ii).
[4] 42 C.F.R. § 483.35(c)(1).
[5] 42 C.F.R. § 483.35(h).
[6] Id.
[7] 42 C.F.R. § 483.71.
[8] Id.
[9] Id.
[10] 42 C.F.R. § 442.43(f).
[11] 42 C.F.R. § 442.43(a).
[12] 42 C.F.R. § 442.43(c).
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- Jennifer L. Hilliard
Of Counsel
