/>iAs part of the Biden administration’s initiative to ensure safe and quality care in long-term care facilities, on May 10, 2024, the Centers for Medicare & Medicaid Services (“CMS”) published a final rule implementing minimum staffing standards in federally funded nursing homes. The final rule requires nursing homes to do the following:
- Maintain enough nursing staff to provide each resident with at least 3.48 hours of care per resident per day (“Total Minimum Staffing Standard”), with at least .55 hours of care per resident per day from registered nurses (“RNs”) and at least 2.45 hours of care per resident per day from nurse aides (“NAs”) (“Individual Minimum Staffing Standards”);
- Maintain an RN on-site 24 hours per day, seven days a week (“24/7 RN Requirement”); and
- Develop and implement enhanced facility assessments, which includes using evidence-based, data-driven methods to assess the details of resident populations and requiring active input from nursing home leadership and direct care staff (“Enhanced Facility Assessments Requirement”).
Implementation Timeline / Compliance Deadlines
The final rule sets forth a staggered timeline for compliance: Beginning the date of publication of the final rule, nursing homes will have 90 days to comply with the Enhanced Facility Assessments Requirement, two years to comply with the 24/7 RN Requirement and Total Minimum Staffing Standard, and three years to comply with the Individual Minimum Staffing Standards (or longer, for “rural” facilities, as defined by the Office of Management and Budget).
| Requirement | Compliance Deadlines |
| Enhanced Facility Assessments Requirement |
August 8, 2024 (for all facilities) |
| 24/7 RN Requirement |
May 11, 2026 (or May 10, 2027, for rural facilities) |
| Total Minimum Staffing Standard |
May 11, 2026 (or May 10, 2027, for rural facilities) |
| Individual Minimum Staffing Standards |
May 10, 2027 (or May 10, 2029, for rural facilities) |
CMS will enforce the above requirements as part of its existing survey, certification and enforcement process for long-term care facilities. Nursing homes that are not in substantial compliance with the requirements as of the relevant compliance deadlines will be subject to CMS’s standard enforcement remedies, including the imposition of civil money penalties, directed plans of correction, denials of payment for new admissions, and/or termination of provider agreements.
Facility Exemptions and Waivers
Under the final rule, nursing homes may be eligible for a temporary exemption from the Total Minimum Staffing Standard, Individual Minimum Staffing Standards, and 24/7 RN Requirement (but not the Enhanced Facility Assessments Requirement). To be considered for a waiver, a facility must demonstrate the following:
- Workforce unavailability based on having a nursing workforce per labor category that is a minimum of 20% below the national average for the applicable nurse staffing type;
- Good faith efforts to hire and retain staff through the development and implementation of a recruitment and retention plan;
- A financial commitment to staffing, supported by documentation of their total financial resources spent to employ direct care staff relative to their revenue;
- Evidence the facility has posted notice of its exemption status in a prominent and publicly viewable location in each resident facility; and
- Evidence the facility provides notice to prospective and current residents of its exemption status and the degree to which it is not in compliance with the Total Minimum Staffing Standard and Individual Minimum Staffing Standards, and that copies of such notices are sent to a representative of the Office of the State Long-Term Care Ombudsman.
Some federally funded nursing homes are excluded from waiver consideration under the final rule. Facilities will not be eligible for exemption if:
- They have failed to submit data to the Payroll-Based Journal System,
- They are a special focus facility,
- They have been cited for widespread insufficient staffing with resultant resident actual harm or a pattern of insufficient staffing with resultant resident actual harm, as determined by CMS, or
- Within the past 12 months, they have been cited at the “immediate jeopardy” level of severity with respect to insufficient staffing.
Changes from the Proposed vs. Final Rule
Prior to releasing the final rule, CMS reviewed over 46,000 comments received after the proposed rule was published on September 6, 2023. These comments were submitted by a variety of industry stakeholders, including long-term care consumers, advocacy groups, senior services providers, long-term care ombudsmen, state survey agencies, various healthcare associations, legal organizations, labor unions, residents, families, healthcare professionals, and administrative staff. In response to the comments received, CMS revised certain parts of the proposed rule prior to finalizing. These key differences are summarized in the table at the end of this article.
Legal Challenges to the Final Rule Becoming Effective
Three of the most common concerns raised by industry stakeholders in response to the proposed rule were (1) the high costs of compliance to be borne by nursing homes, (2) the discounting of direct care provided by LVNs, LPNs, and other caregivers, and (3) the failure to adequately address the rural/non-rural nursing home divide. In the final rule, CMS addresses, but does not resolve, these concerns. CMS estimates the final rule will cost facilities $43 billion over 10 years ($4.3B per year). Provider trade associations have published analysis estimating the cost at over $6 billion per year. Regarding the high costs of compliance, CMS stated it would invest over $75 million in a national nursing home staffing campaign; however, CMS has not explained how, when, or where these funds would be invested (and there has been no mention of increasing Medicare or Medicaid rates to offset costs of compliance). Regarding direct care provided by LVNs, LPNs, and other caregivers, CMS explained that “LPN/LVN staffing levels do not appear to have a consistent association with safety and quality of care, unlike RN and NA staffing levels.” CMS therefore did not modify the proposed rule to allow direct care provided by LPNs and LVNs to count toward the Individual Minimum Staffing Standards. LPN/LVN care does count toward the total 3.48 HPRD requirement, however. Lastly, regarding the rural/non-rural nursing home divide, CMS’s only response was to highlight the availability of expanded hardship exemptions for qualifying nursing homes.
Given the potential cost and impact that the final rule will have on federally funded nursing homes, there have been efforts by facilities and industry groups to prevent the rule from becoming effective. There are a several pathways through which the final rule could be challenged, including:
- Three bills have been introduced in Congress seeking to prohibit the Secretary of Health and Human Services from finalizing a proposed rule regarding minimum staffing for nursing facilities, and to establish an advisory panel on the nursing home workforce:
- The Protecting Rural Seniors’ Access to Care Act (H.R. 5796) was introduced in the House of Representatives by Rep. Michelle Fischbach (R-MN-7) on September 28, 2023. The bill seeks to prohibit the Secretary of Health and Human Services from finalizing a proposed rule regarding minimum staffing for nursing facilities, and to establish an advisory panel on the nursing home workforce. As of September 29, 2023, the bill has been referred to the House Subcommittee on Health.
- A counterpart to H.R. 5796, the Protecting Rural Seniors’ Access to Care Act (S.3410) was introduced in the Senate by Sen. Deb Fischer (R-NE) on December 5, 2023. The bill seeks to prohibit the Secretary of Health and Human Services from finalizing a proposed rule regarding minimum staffing for nursing facilities, and to establish an advisory panel on the nursing home workforce. As of December 5, 2023, the bill has been read twice and referred to the Senate Committee on Finance.
- The Protecting America’s Senior’s Access to Care Act (H.R. 7513) was introduced in the House of Representatives by Rep. Michelle Fischbach (R-MN-7) on March 1, 2024. The bill seeks to prohibit the Secretary of Health and Human Services from finalizing a proposed rule regarding minimum staffing for nursing facilities, and to establish an advisory panel on the skilled nursing facility workforce. As of March 6, 2024, the bill has been considered and marked-up by the House Committee on Ways and Means.
If enacted by Congress, each of the bills above would prohibit the final rule from being formally enacted, thus preventing CMS from enforcing the minimum staffing requirements within the final rule.
- The VA Report on Proposed CMS Staffing Ratios Act (S. 3841) was introduced in the Senate by Sen. Angus King, Jr. (I-ME) on February 29, 2024. The bill seeks to require the Secretary of Veterans Affairs to submit a report on the impact of a proposed rule submitted by the Centers for Medicare & Medicaid Services on veteran access to long-term care facilities. As of February 29, 2024, the bill has been read twice and referred to the Senate Committee on Veterans’ Affairs.
- There could be a groundswell of bipartisan federal and/or state’s rights support, similar to what was seen in response to the proposed rule.
- With a federal election six months away, a new Congress could pass legislation, or a new administration could issue an executive order, to neutralize the final rule.
- While a legal challenge to the final rule has not yet been filed, it is widely anticipated that industry groups will file legal action challenging the rule. When the proposed rule was published in September 2023, the American Health Care Association (AHCA) publicly stated that legal action would be a possible option.
Despite these contingencies, federally funded nursing homes have a long road ahead of them. By CMS’s own calculations, 79% of facilities are currently not in compliance with the requirements of the final rule. Industry groups have estimated that percentage to be closer to 95% of all facilities. To encourage a smooth transition, CMS has promised it will publish interpretive guidance and revised survey procedures in advance of each compliance deadline. But given the staggered nature of the compliance deadlines, obtaining a complete picture of the final rule, and the totality of the impact on federally funded nursing homes, will take years.
Proposed vs. Final Rule
| Proposed Rule | Final Rule | |
| Individual Minimum Staffing Standards |
Federally funded nursing homes must maintain enough nursing staff to provide each resident with .55 hours of care per resident per day (“HPRD”) from RNs and at least 2.45 HPRD from NAs. Facilities must comply with the Individual Minimum Staffing Standards within three years of publication of the final rule (or five years for rural facilities). |
Under the final rule, there are no changes to the proposed Individual Minimum Staffing Standards, or to the proposed compliance deadlines. However, CMS clarified in its commentary on the final rule that hours worked by a facility’s director of nursing (“DON”) will count toward the .55 HPRD requirement for RNs provided the DON is “available to provide direct resident care.” CMS also clarified that “nurse aides” includes certified nurse aides, aides in training, and medication aides/technicians. |
| Total Minimum Staffing Standard | A total HPRD minium was not included in the proposed rule. In the proposed rule, CMS included only the the .55 HPRD from RNs and 2.45 HPRD from NAs. CMS sought comment on the total staffing minimum of 3.48 HPRD (which was adopted). |
Under the final rule, federally funded nursing homes must maintain enough nursing staff to provide each resident with a total of at least 3.48 HPRD (inclusive of the .55 HPRD from RNs and 2.45 HPRD from NAs). In its commentary on the final rule, CMS clarified that facilities may use any combination of nurse staffing to account for the remaining .48 HPRD, including RNs, NAs, licensed practical nurses (“LPNs”), and/or licensed vocational nurses (“LVNs”). Facilities must comply with the Total Minimum Staffing Standard within two years of publication of the final rule (or three years for rural facilities). |
| 24/7 RN Requirement |
Federally funded nursing homes must maintain a RN on-site 24 hours per day, seven days a week, who must be “available to provide direct care.” Facilities must comply with the 24/7 RN Requirement within two years of publication of the final rule (or three years for rural facilities). |
Under the final rule, there are no changes to the 24/7 RN Requirement. However, CMS clarified in its commentary on the final rule that hours worked by a facility’s DON will count toward the 24/7 RN Requirement provided the DON is “available to provide direct resident care.” |
| Enhanced Facility Assessments Requirement |
Existing regulations require federally funded nursing homes to complete and annually update facility assessments to determine what resources are necessary to adequately care for residents (see 42 CFR § 483.70(e).) These existing requirements will be redesignated to a standalone section of the Code of Federal Regulations, at 42 CFR § 483.71. In addition, the existing requirements will be revised to add “behavioral health issues” to clarify that facilities must assess their residents’ physical and behavioral health. “Skill sets” will be added to clarify that facilities must assess “staff competencies and skill sets” when determining what staffing is necessary to care for residents. Facilities must include the input of facility staff in the assessments. “Facility staff” includes nursing home leadership, management, direct care staff and their representatives, and staff providing other services. Facilities must use the facility assessments to (1) inform staffing decisions for each shift and for the resident population as a whole, (2) assess the specific needs for each resident unit in the facility, (3) develop and maintain a staffing plan to maximize recruitment and retention of direct care staff, and (4) inform contingency planning for events that do not necessarily require activation of the facility’s emergency plan but that do have the potential to impact resident care. All facilities (including rural facilities) must comply with the Enhanced Facility Assessments Requirement within 60 days of publication of the final rule. |
Under the final rule, when preparing facility assessments, federally funded nursing homes must ensure the active participation of (1) nursing home leadership and management, which includes a member of the governing body, the medical director, an administrator, and the director of nursing, and (2) direct care staff, which includes RNs, NAs, LPNs/LVNs, and representatives of direct care staff, if applicable. Facilities must also solicit and consider input received from residents, resident representatives, and family members. CMS clarified in its commentary on the final rule that “direct care staff” includes physicians, nurse practitioners, physician assistants, social workers, activity directors, dieticians/nutritionists, therapists, and staff members of any special care units, if applicable. CMS clarified that “ensure the active participation of” means the facilities must actively solicit input from required participants. Facilities must also ensure there is enough time for participants to contemplate and respond to the requests for input (i.e., more than a few days). Facilities must also share the input it receives with all of the individuals who are actively participating in the facility assessment process in time for there to be discussion of the received input. CMS also clarified that “active participation” does not mean that all required staff or their representatives must participate in every discussion and approve the final facility assessment; however, at a minimum, all required staff should have the opportunity to present their views and have those views considered by the other participants. CMS noted that participation can be in-person or by phone/virtual. Under the final rule, the compliance timeline has been extended. All facilities (including rural facilities) must comply with the Enhanced Facility Assessments Requirement within 90 days of publication of the final rule. |
| Exemptions and Waivers |
Federally funded nursing homes may be eligible for a temporary exemption from the Minimum Staffing Standards (but not the 24/7 RN Requirement or the Enhanced Facility Assessments Requirement) if they demonstrate (1) workforce unavailability based on a low provider population ratio or if their location is at least 20 miles from the next closest long-term care facility, (2) good faith efforts to hire and retain staff through the development and implementation of a recruitment and retention plan, and (3) a financial commitment to staffing, supported by documentation of their total financial resources spent to employ direct care staff relative to their revenue. Facilities will not be eligible for exemption if (1) they have failed to submit data to the Payroll-Based Journal System, (2) they are a special focus facility, or (3) in the past 12 months, they have been cited for insufficient staffing by CMS. Exemptions will be in effect for one year and are renewable annually. |
Under the final rule, federally funded nursing homes may be eligible for a temporary exemption from the Individual Minimum Staffing Standards, the Total Minimum Staffing Standard, and the 24/7 RN Requirement (but not the Enhanced Facility Assessments Requirement), provided certain requirements are met. The exemption requirements from the proposed rule are finalized as proposed, with modification to the “workforce unavailability” requirement. Under the final rule, facilities must demonstrate workforce unavailability based on having a nursing workforce per labor category that is a minimum of 20% below the national average for the applicable nurse staffing type, as calculated by CMS using the Bureau of Labor Statistics and Census Bureau data. In addition to the foregoing, under the final rule facilities must meet two additional requirements related to transparency of information. Facilities must (1) post, in a prominent and publicly viewable location in each resident facility, notice of the facility’s exemption status, the extent to which the facility does not meet the minimum staffing requirements, and the timeframe during which the exemption applies, and (2) provide similar notice to prospective and current residents, and provide copies of this notice to the Office of the State Long-Term Care Ombudsman. The notice provided to residents must also include a statement reminding residents of their rights to contact advocacy and oversight entities. The exemption exclusion criteria from the proposed rule are finalized as proposed, with the exception of the exclusion for citations for insufficient staffing. Instead, under the final rule, facilities will not be eligible for exemption if, in the past 12 months, they have been cited for widespread insufficient staffing with resultant resident actual harm or a pattern of insufficient staffing with resultant resident actual harm, or are cited at the immediate jeopardy level of severity with respect to insufficient staffing, as determined by CMS. Under the final rule, exemptions may remain in place only until the next standard survey, unless it is removed as a result of a facility falling into the exclusion category. Importantly, CMS clarified that facilities cannot request a survey specifically for the purpose of granting an exemption, but rather that facilities would be evaluated during a survey, such as the standard recertification survey, to determine if they were eligible for an exemption. Exemptions may be extended if the facilities continue to meet exemption criteria. |
