The Centers for Medicare and Medicaid Services (CMS) have opened fire on long-term care (LTC)  facilities through historic changes to rules pertaining to numerical staffing standards. In every corner of the long-term care facility universe we hear the fervent echoing of nursing community protagonists and exponents spreading the dreaded news long feared by so many: “new staffing standards are coming, new staffing standards are coming” … registered nurses on the premises 24 hours a day by May l, 2026, in non-rural facilities, and minimum numerical staffing requirements by May 20, 2027.
 
Background 
On February 28, 2022, President Biden announced a widespread set of modifications to the current federal requirements for Medicare and Medicaid long-term care facilities. According to the White House, this move was ostensibly aimed at improving the safety and quality of care within the nation's nursing homes. One key initiative within the Biden-Harris Administration's strategy was to establish a minimum nursing home staffing requirement for LTC facilities participating in Medicare and Medicaid. The applicable regulations relevant for this discussion are set forth in Code of Federal Regulation section 483.35 (the Code). 

On April 22, 2024, the CMS Department of Health and Human Services finalized the Minimum Staffing Standards for Long-Term Care Facilities and Medicaid Institutional Payment Transparency Reporting rule. The final rule was published in the Federal Register on May 10, 2024, and became effective June 21, 2024.

The federal Appendix PP of the State Operations Manual (SOM) was released on February 24, 2024. The primary revisions address changes to the medical director, admission and discharge policies, and medication practices interpretive guidelines. According to CMS, these changes will provide additional support to surveyors in the field. However, as is often the trouble with guidelines, regulators yield the SOM as if it were law – except it lacks any legal authority. 

Below, this article will briefly describe the federal statutory and regulatory framework that governs provider participation in the Medicare and Medicaid programs, including any significant revisions to the federal Appendix PP of the SOM. Next, the article will provide an outline of the new staffing requirements that will be implemented and enforced by CMS in three stages beginning May 11, 2026. Finally, it will provide several alternatives providers can pursue in response to these new regulations.

Long-Term Care Laws and the Regulatory Scheme 
Sections 1819 and 1919 of the Social Security Act (the Act) set out regulatory requirements for Medicare and Medicaid long-term care facilities, respectively. Specific statutory sections such as 1819(d)(4)(B) and 1919(d)(4)(B) of the Act permit the Secretary of the Department of Health and Human Services (HHS) (the Secretary) to establish any additional requirements relating to the health, safety, and well-being of residents in skilled nursing facilities (SNF) and nursing facilities (NF), as the Secretary finds necessary. This provision and other statutory sections provide CMS with the authority to issue regulations revising the existing requirements and to mandate a staffing minimum for nursing care.

In addition to changing the regulations related to staffing, CMS will use the following modified revisions to the Appendix PP SOM. The most significant revisions to the SOM will affect guidance pertaining to admission, discharge, and chemical restraints. In the context of discharge, surveyors will begin looking more closely at the following categories:

• Discharge for failure to meet resident needs where there is no evidence of a facility having attempted to meet resident needs prior to discharge
• Discharge for failure to pay without evidence that the facility offered to assist with applying for medical assistance or of resident refusal to comply with seeking payment from Medicare/ Medicaid
• Discharge on the basis of a resident posing a danger to the health/safety of others without evidence supporting that such danger exists
• Refusal to allow a resident to return after hospitalization or other absence without a valid reason for refusing such return
• Failure to appropriately account for resident needs and safety post-discharge.

Among key points related to chemical restraints, the SOM highlights that facilities are to ensure:

• Residents only receive psychotropic medications when other nonpharmacological interventions are clinically contraindicated.
• Residents only remain on psychotropic medications when gradual dose reduction and behavioral interventions have been attempted and/or deemed clinically contraindicated.
• Medications are only used to treat residents’ medical symptoms and not for discipline or staff convenience, which would be deemed a chemical restraint.
• Residents, their families, and/or representatives are informed of the benefits, risks, and alternatives for psychotropic medications in advance of any initiation or increased administration of such medications, including with respect to any “black box” warnings (a label on a prescription drug that alerts patients to serious or life-threatening risk). 

HHS and CMS have the ability not only to provide additional details to fill in legislative holes or provide elucidation to participating providers, via the Code of Federal Regulation section 483.1-483.95 and SOM, but also to yield significant enforcement authority. Long-term care providers found to be out of compliance with sections of the Code or interpretations found in the SOM can face serious repercussions including termination of Medicare provider agreements, denial of payments for care provided to residents who have insurance through Medicare and Medicaid, and civil money penalties. While CMS purports the aforementioned enforcement mechanisms were designed to deter noncompliance and induce those providers who are out of compliance to quickly return to the regulatory mandates, often these remedies are used to punish providers labeled by surveyors as substandard providers.

Similarly, and consistent with the virtues of federalism, states provide additional requirements for long-term care owners and providers including laws and regulations for obtaining and renewing a license to provide skilled nursing services to residents of the respective state. Coincidently, virtually every state in the union has at some point considered implementing minimum numerical staffing requirements. While some have decided against a minimum staffing requirement, in 2021, 36 states had laws requiring minimum nurse staffing standards for SNFs. These standards vary widely, from Washington, D.C. requiring 4.1 total nursing hours per resident per day (HPRD) to Arizona requiring less than one total nursing HPRD. Only six states require registered nurse (RN) to be on duty 24 hours per day.

New Staffing Regulations 42 CFR § 483.35
42 CFR § 483.35 titled “Nursing Services” has long allowed nursing home administration some discretion in determining how many licensed nurses and certified nursing aides were required during a 24-hour period. Pursuant to the prior regulatory language under 42 CFR § 483.35, LTC, facilities required the services of a RN for at least 8 consecutive hours a day, 7 days a week (§ 483.35(b)(1)). Additionally, LTC facilities were required to provide the services of “‘sufficient numbers’ of licensed nurses and other nursing personnel … 24 hours a day to provide nursing care to all residents in accordance with the resident care plans and assessments.” § 483.35(a)(1).

Under the regulations effective June 21, 2024, providers must comply with the following requirements or face the aforementioned regulatory enforcement penalties: 

• Have a registered nurse at the facility for 24 hours
• Have a minimum of 3.48 total nurse staffing hours per resident per day
• Allocate 0.55 staffing hours per resident per day for direct care provided by registered nurses
• Have 2.45 nurse aide hours per resident day. § 483.35(b)(i)(ii).

Researchers in the February 2025 issue of Health Affairs Scholar investigating the possible effects and readiness of skilled nursing providers using staffing data obtained from CMS’s Payroll Based Journal in 2023 and the first quarter of 2024 came to varying conclusions. Researchers found that 58% of all U.S. facilities meet the total nursing rule, 50% meet the registered nurse rule, and 28% meet the nurse aide standard.¹ However, at least two separate studies found that more than 80% of nursing homes fail to meet the updated requirements in the final staffing mandate.²

Although CMS endorses these changes as surefire interventions that will promote increased positive health outcomes at nursing facilities, the new regulations place significant faith in registered nurses who rarely provide the hands-on care that is the most important element of nursing home care. Consequently, many providers will be forced to reduce the number of licensed registered nurses to satisfy the new staffing minimums. Licensed practical nurses (LPNs) are often unit mangers or floor supervisors at long-term care facilities. LPNs balance direct-care responsibilities that require them to interact with residents routinely with supervisory obligations that allow for the free flow of information to doctors, registered nurses, and certified nursing assistants. On one hand, CMS claims research supports better health outcomes when registered nurses are more involved in direct care of resident. On the other hand, these studies did not focus on health care outcomes when LPNs are not involved at all in nursing homes.  

Alternatives to Compliance 
With the Biden Administration in the rear view and the second Trump Administration beginning, optimistic pundits believe the minimum staffing standards will be modified or totally rescinded. Nevertheless, providers, owners, administrators, and management companies must determine how to best navigate the period from now until enforcement day on May 11, 2026.

Litigation is always an option for those willing to take on CMS and HHS directly. Some providers and lobbyists have taken the path less traveled and decided to adopt an aggressive approach to the new regulations. Approximately 20 states and organizations have sued CMS over this new rule, claiming that it would lead to many nursing homes going out of business and jeopardize the long-term care of nursing home residents. There is no formal ruling on these legal objections, so it remains to be seen if legal options will bear any fruit.

Although a direct assault on the minimum staffing requirements would probably be the most emotionally satisfying in the short term, some providers are leery of a direct challenge to CMS and HHS. Many have done so in the past and invested considerable time and expense only to be on the losing end of such an endeavor. Additionally, HHS does not soon forget conduct that could be construed as an affront to its authority. Accordingly, many long-term care providers are hopeful that on the heels of the U.S. Supreme Court overturning Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.³ jurisprudence, HHS and CMS may decide to compromise so legal action will not be necessary instead of allowing the judiciary and executive branches to intervene and continue to limit administrative agency power.

Another alternative for those desperate to circumvent the new regulations is the exemption option. CMS will grant an exemption if a facility can satisfy the factors enumerated in § 483.35(H). The exemption from the minimum standards of 0.55 HPRD for RNs, 2.45 HPRD for NAs, and 3.48 HPRD for total nurse staffing, and the eight-hour per day 24/7 RN onsite requirement are available under limited circumstances pursuant to 42 CFR § 483.35(H).

For a provider to qualify, a facility must meet the following criteria after demonstrating lack of sufficient licensed nursing staff in its geographic area: 

• The workforce is unavailable as measured by having a nursing workforce per labor category that is a minimum of 20 percent below the national average for the applicable nurse staffing type
• The facility must demonstrate good faith efforts to hire and retain staff
• The facility must provide documentation of its monetary commitment to staffing
• The facility posts a notice of its exemption status in a prominent and publicly viewable location in each resident facility
• The facility provides individual notice of its exemption status and the degree to residents and to the local ombudsman.⁴

Conclusion 
While it remains to be seen how these events will affect long-term care for years to come, there is well-founded fear that some providers will not be able to afford the staff required to comply. Granted, it seems only logical that increased registered nursing presence will allow for increased higher-level nursing participation; it is not reasonable to believe that it will in any way alter the most serious types of problems facing homes today. For example, sexual abuse, or abuse of any kind, often results from acceptance of a resident who never should have been admitted to a long-term care facility as currently constructed.

From the perspective of this writer who has spent time as a regulator and served as legal counsel for nursing homes, until the United States invests in broader nursing home reform aimed at creating facilities specifically designed to treat elderly residents with specialized needs, it will be challenging to solve the long-term care conundrum. With the baby boomers entering the final frontier, judicious, practical thought must be given to how society wants to treat the elderly population – hiring an additional nurse or two may not solve the problem. 

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^{1 Nursing Home Trade Associations Challenge Administration’s New Staffing Requirements," Health Affairs Forefront, July 15, 2024, DOI: 10.1377/forefront.20240712.10341. https://academic.oup.com/healthaffairsscholar/article/3/2/qxaf009/7959118}

^2 Id.

^{3 Chevron USA Inc. v. Natural Resources Defense Council, Inc., 467 US 837 - Supreme Court 1984 - Google Scholar.} 

^{4 42 CFR § 483.35(H).}