On April 22, 2024, the Centers for Medicare & Medicaid Services (CMS) issued its controversial final rule related to the first federally imposed minimum staffing requirements for long term care facilities (“Final Rule”).[i] For the first time, the federal government is mandating minimum levels of nursing staff, including a 24/7 RN on-site requirement, and implementing new requirements related to facility staffing assessments.

As is well known throughout the long term care industry, CMS is imposing the new staffing standards without providing for any related funding to support the new requirements. This article addresses the new federal requirements, the related compliance deadlines, and the continuing controversy and advocacy against the unfunded standards.

The Minimum Staffing Requirements. The Final Rule requires long term care facilities to provide a minimum of 3.48 hours of total nurse staffing hours per resident per day. Of the 3.48 hours, at least 0.55 of the hours must be provided by RNs and 2.45 hours of care provided by nurse aides. Facilities may use any combination of nurse staff (RN, licensed practical nurse, licensed vocational nurse, or nurse aides) to account for the additional 0.48 hours needed to comply with the total nurse staffing standard.[ii] CMS notes that if the acuity of residents in a facility necessitates a higher level of care, higher staffing levels may be required.[iii]

The 24/7 RN On-Site Requirements. CMS is also requiring an RN to be on site at the facility 24 hours per day, 7 days per week, to provide skilled nursing care to all residents in accordance with resident care plans. The 24/7 RN can be the Director of Nursing (DON), but the DON must also be available to provide direct resident care.[iv]

The Facility Assessment Requirement. The requirement for long term care facilities to conduct a facility assessment to determine sufficiency of nursing staff was first required in 2016, as part of a CMS “Reform of Requirements” regulation.[v] The Final Rule expands the existing requirement to conduct assessments and sets forth a laundry list of factors to be addressed in the assessment.[vi] CMS summarizes the facility assessment requirements as follows:

• Facilities must use evidence-based methods when care planning for their residents, including consideration for those residents with behavioral health needs.

• Facilities must use the facility assessment to assess the specific needs of each resident in the facility and to adjust as necessary based on any significant changes in the resident population.

• Facilities must include the input of the nursing home leadership, including but not limited to, a member of the governing body and the medical director; management, including but not limited to, an administrator and the director of nursing; and direct care staff, including but not limited to, RNs, LPNs/LVNs, and NAs, and representatives of direct care staff as applicable. The LTC facility must also solicit and consider input received from residents, resident representatives, and family members.

• Facilities are required to develop a staffing plan to maximize recruitment and retention of staff consistent with what was described in the President’s April Executive Order on Increasing Access to High-Quality Care and Supporting Caregivers.[vii]

Current Compliance Deadlines. The new Final Rule is scheduled to be published on May 10, 2024, and does not take effect until June 21, 2024.[viii] Non rural (urban) long term care facilities must fully comply with the new Final Rule within three years, and rural facilities must comply within five years after the publication date of the Final Rule.[ix]

The Hardship Exception and Waiver. A facility can receive an exemption from the staffing requirements if one of three of the following applies:

1. The facility may receive an exemption from the total nurse staffing requirement of 3.48 hours per resident day at § 483.35(b)(1) if the combined licensed nurse, which includes both RNs and LVN/LPNs, and nurse aide to population ratio in the area is a minimum of 20 percent below the national average.
2. The facility may receive an exemption from the RN 0.55 hours per resident day requirement (§ 483.35(b)(1)(i)) and an exemption of 8 hours a day from the RN on site 24 hours per day, for 7 days a week requirement (§ 483.35(c)(1)) if the RN to population ratio in the area is a minimum of 20 percent below the national average.
3. The facility may receive an exemption from the NA 2.45 hours per resident day requirement at § 483.35(b)(1)(ii) if the NA to population ratio in the area is a minimum of 20 percent below the national average.[x]

To qualify for a Hardship Exception, a facility must provide documentation of good faith efforts to hire and retain staff and the facility’s financial commitment to staffing, including the amount the facility expends on nurse staffing relative to revenue.[xi] The facility must also be surveyed for compliance with CMS long term care participation requirements. Also, if the hardship exception is granted, the facility must comply with specified disclosure requirements related to residents and the State Long-Term Care Ombudsman. Finally, a Hardship Exception lasts from the time the exemption is granted until the next standard recertification survey.[xii]

Facilities that qualify for a hardship exemption to the minimum nurse staffing requirement may also request an exemption of eight hours per day of the 24/7 RN requirement. If the waiver is granted, then the facility must have an RN, NP, PA, or physician available to respond immediately to phone calls from the facility.[xiii]

Controversy Over the Final Rule Continues. CMS states that the new minimum staffing standards are needed “to address ongoing safety and quality concerns” for Medicare and Medicaid residents residing in long term care facilities. [xiv] However, the nursing home industry’s leading association, the American Health Care Association’s (AHCA) CEO, Mark Parkinson, responded to the passage of the Final Rule by saying while the Final Rule “may be well intentioned, the federal staffing mandate is an unreasonable standard that only threatens to shut down more nursing homes, displace hundreds of thousands of residents, and restrict seniors' access to care.”[xv] Referring back to the fact that the Final Rule does not provide any related funding for nursing homes, Mr. Parkinson stated the “unfunded mandate doesn't magically solve the nursing crisis” and that “the agency is overstepping with a one-size-fits-all enforcement approach that is deeply flawed.”[xvi]

The AHCA CEO wrapped up his statement by pledging that “[t]his fight is not over.” The AHCA subsequently followed up the CEO’s Statement with an article citing strong bipartisan opposition to the Final Rule.[xvii] As a reflection of the opposition to the Final Rule, U.S. Representative Michelle Fischbach introduced a bill called “Protecting America’s Seniors’ Access to Care Act” on March 1, 2024, in the House of Representatives which would prohibit CMS from implementing or enforcing the Final Rule.[xviii]

In summary, long term care facility providers should work towards meeting the new federal standards by the related compliance deadlines, but also be on the lookout for relief from the Final Rule as the industry continues to push back against the new CMS mandates.

[i] CMS Newsroom: Medicare and Medicaid Programs: Minimum Staffing Standards for Long-Term Care Facilities and Medicaid Institutional Payment Transparency Reporting Final Rule (CMS 3442-F) at https://www.cms.gov/newsroom/fact-sheets/medicare-and-medicaid-programs-minimum-staffing-standards-long-term-care-facilities-and-medicaid-0
[ii] Id; Final Rule regulation scheduled to be published on 5/10/2024 at https://public-inspection.federalregister.gov/2024-08273.pdf (“Pending Regulation”).
[iii] Pending Regulation.
[iv] CMS Newsroom (CMS 3442-F); Pending Regulation.
[v] Pending Regulation.
[vi] Id; to be codified at 42 U.S.C. § 483.71.
[vii] CMS Newsroom (CMS 3442-F).
[viii] Federal Register at https://www.federalregister.gov/public-inspection/2024-08273/medicare-and-medicaid-programs-minimum-staffing-standards-for-long-term-care-facilities-and-medicaid; Pending Regulation.
[ix] Pending Regulation.
[x] Id.
[xi] Facilities are not eligible for a hardship exemption if they fail to submit data to the Payroll Based Journal System, are a Special Focus Facility, or have been identified as having widespread, or a pattern of, insufficient staffing that resulted in actual harm to a resident; or an incident of insufficient staffing that caused or is likely to cause serious harm or death to a resident in the last twelve months. CMS Newsroom (CMS 3442-F).
[xii] CMS Newsroom (CMS 3442-F); Pending Regulation.
[xiii] Pending Regulation.
[xiv] Id.
[xv] Nursing Homes React to Staffing Mandate Final Rule (ahcancal.org)
[xvi] Id.
[xvii] ICYMI: Strong Bipartisan Opposition Results From Biden Administration Finalizing Federal Minimum Staffing Mandate For Nursing Homes (ahcancal.org)
[xviii] Text - H.R.7513 - 118th Congress (2023-2024): Protecting America’s Seniors’ Access to Care Act | Congress.gov | Library of Congress