In a long-awaited and controversial Final Rule posted on April 22, 2024,[1] the Centers for Medicare and Medicaid Services (CMS) adopted new federal minimum staffing requirements that will require long-term care facilities to (1) ensure the presence of a registered nurse (RN) on-site 24 hours per day, seven days per week; and (2) provide a minimum of 3.48 total nurse staffing hours per resident day (HPRD), which includes at least 0.55 HPRD for RNs and 2.45 HPRD for nurse aides (NAs). Despite industry-wide opposition to federal minimum staffing standards and the lack of any new funding, CMS believes that these new standards will increase staffing in more than 79 percent of nursing facilities nationwide. Notably, the Final Rule establishes staffing requirements that exceed the current minimum staffing standards in all 50 states.
Hardship Exemptions
The Final Rule allows facilities to apply for hardship exemptions, which will only be available in limited circumstances. To qualify for an exemption, a facility must meet certain criteria for geographic staffing unavailability, financial commitment to staffing and good faith efforts to hire. In addition, facilities will not be eligible for an exemption if they have (i) failed to submit required Payroll Based Journal (PBJ) data; (ii) been designated as a Special Focus Facility; (iii) been cited for widespread insufficient staffing with resident harm; or (iv) been cited for immediate jeopardy with respect to insufficient staffing.
Staggered Implementation Timeline
Non-rural facilities must be in compliance with the total nurse staffing standard of 3.48 HPRD by May 11, 2026, and rural facilities must be in compliance by May 10, 2027. Facilities must comply with the RN on-site 24 hours/7 day a week requirement by these same dates.
CMS expects non-rural facilities to be in compliance with the minimum standard of 0.55 RN HPRD and 2.45 NA HPRD by May 10, 2027, and rural facilities to be in compliance by May 10, 2028.
Facility Assessments
The Final Rule also expands Facility Assessment requirements, adding “behavioral health” to the list of issues that facilities must address during the Facility Assessment process, and requiring active participation in the assessment process by nursing home leadership and management, direct care staff, residents, resident representatives, and family members. All facilities – whether rural or non-rural – will need to incorporate the new Facility Assessment requirements within 90 days after publication of the Final Rule.[2]
Enforcement
CMS anticipates using a combination of PBJ data and on-site surveys to assess compliance with the Final Rule and will publish detailed information on the assessment process in sub-regulatory filings. Among other penalties, CMS may terminate provider agreements, deny payment for new admissions and/or impose civil monetary penalties for noncompliance. CMS also stressed its commitment to “robustly funding the survey, certification, and enforcement programs,” noting the President’s FY 2025 budget calls for an increase in funding for this purpose.
Final Thoughts
It is very likely that long-term care associations are preparing to file lawsuits to prevent the Final Rule from taking effect. In addition, at least one bill has been introduced in the U.S. Senate aimed at preventing implementation and enforcement of the Final Rule. While facilities should take steps to meet the staffing requirements over the long-term and, more immediately, to incorporate the new Facility Assessment requirements, keep an eye on further Sheppard Mullin Healthcare Blogs for updated information.
FOOTNOTES
[1] The Final Rule is on file at the Federal Register for public inspection. It is expected to be officially published on May 10, 2024.
[2] Ninety days after May 10, 2024 is Thursday, August 8, 2024.
