On September 1, 2023, the Centers for Medicare & Medicaid Services (CMS) issued a proposed rule titled “Minimum Staffing Standards for Long-Term Care (LTC) Facilities and Medicaid Institutional Payment Transparency Reporting.”

The “Medicare and Medicaid Programs: Minimum Staffing Standards for Long-Term Care Facilities and Medicaid Institutional Payment Transparency Reporting (CMS 3442-P)” fact sheet is here and the proposed rule is here.

Proposed Nursing Requirements

If finalized, the proposed rule would require nursing homes nationwide to provide, at a minimum:

1. One onsite Registered Nurse (RN) 24 hours per day, seven days per week;
2. 0.55 RN hours per resident per day; and
3. 2.45 Nurse Aide hours per resident per day.

To the extent a nursing home’s residents require, it is CMS’ expectation that facilities will provide appropriate staffing above and beyond these baseline figures to meet their residents’ needs.

CMS also expects these proposed requirements to lead to an increased staffing need at more than 75% of nursing homes nationwide. To help with this looming problem, CMS announced a national campaign aimed at making it easier to enter nursing home careers by investing $75 million in scholarships and other financial incentives.

As part of the proposed rule, CMS also aims to strengthen the existing facility assessment process by requiring nursing homes to: (1) assess the specific needs of each of its residents and make adjustments as necessary, including on a shift-by-shift basis; (2) formulate staffing plans designed to maximize staff recruitment and retention; and (3) incorporate the input of staff, including not only management, but also nursing staff and their representatives, as part of the assessment process.

Contemplated Timeline for Compliance

CMS proposes a phased implementation of these staffing and facility assessment requirements based on a nursing home’s location. From the date of final rule publication:

1. All nursing homes, regardless of locale, would have 60 days to comply with facility assessment requirements;
2. Urban facilities would have two years to comply with the 24 hours per day, seven days per week RN requirement, while rural facilities would have three years; and
3. Urban facilities would have three years to comply with the 0.55 RN hours and 2.45 Nurse Aide hours requirement, while rural facilities would have five years.

Temporary Hardship Exemption

CMS does, however, provide for a temporary hardship exemption from the minimum staffing requirements for facilities that can demonstrate:

1. Workforce unavailability based on location, evidenced by either a medium (i.e., 20% below national average) or low (i.e., 40% below national average) provider-to-population ratio for the nursing workforce, as calculated by CMS using the Bureau of Labor and Statistics and Census Bureau data, or if the facility is at least 20 miles away from another LTC facility (also as determined by CMS);
2. Good faith efforts to hire and retain staff through the development and implementation of a recruitment and retention plan (by documenting job postings and job vacancies, including the number and duration of vacancies, job offers made and competitive wage offerings); and
3. A financial commitment to staffing by documenting the total annual amount spent on direct care staff.

Facilities are ineligible for the temporary hardship exemption if they have either (1) failed to submit their data to CMS’ Payroll-Based Journal System; (2) been identified as a special focus facility; or (3) within the 12 months prior: have been identified as having widespread insufficient staffing resulting in resident actual harm, identified as having a pattern of insufficient staffing resulting in resident actual harm, or cited at the immediate jeopardy level of severity with respect to insufficient staffing as determined by CMS.

Should the rule be finalized, CMS will use its existing survey, certification, and enforcement processes to determine compliance. Facilities found to be non-compliant would be subject to CMS enforcement actions including, but not limited to, provider agreement termination, denial of Medicare and/or Medicaid payments by CMS, state monitoring, transfer of residents, transfer of residents with closure of the facility at issue, and/or civil monetary penalties. In determining the appropriate enforcement remedy, CMS will consider the scope and severity level of the then existing deficiency.

The 60-day comment period for the proposed rule runs through November 6, 2023. It should be noted that CMS is soliciting comments on, among other things, whether a total nurse staffing standard of 3.48 hours per resident per day (including the 0.55 RN hours and 2.45 Nurse Aide hours) should also be implemented.