With New Facility Staffing Expectations, CMS Proposes Sea Change for Long-Term Care Industry - McDermott Will & Emery

With New Facility Staffing Expectations, CMS Proposes Sea Change for Long-Term Care Industry


In February 2022, US President Joseph Biden announced an overhaul of regulations affecting nursing homes. These reforms, aimed at enhancing the safety and quality of care for nursing-home residents, focus on improving transparency and accountability. The Centers for Medicare & Medicaid Services (CMS) continued this goal of reforming the senior services industry on September 6, 2023, by publishing a proposed rule to establish minimum nursing staff requirements for long-term care facilities (LTCFs) participating in Medicare and Medicaid:

  • Every LTCF must ensure that registered nurses (RNs) provide a minimum of 0.55 hours per resident day (HPRD) of direct patient services, and nurse aides (NAs) must offer 2.45 HPRD, regardless of the individual LTCF’s patient case-mix.
  • All LTCFs must also maintain an RN on site 24 hours per day, seven days per week at each Medicare- and Medicaid-certified facility.

CMS estimates that approximately 79% of LTCFs will need to strengthen staffing in facilities to meet these requirements. To accomplish this, CMS offers a staggered rollout and an exemption process to account for the nursing shortage nationwide and the larger challenges specific to rural and underserved communities. It is possible that the Department of Health and Human Services (HHS) Health Workforce Initiative may help to mitigate some of these ongoing shortages.

In Depth

A. Staffing Requirements

Under current requirements to comply with Medicare and Medicaid Conditions for Coverage and Participation (CoP), LTCFs are required to employ “sufficient” and “qualified” nursing staff with appropriate competencies and skill sets to address the healthcare needs of residents in the applicable facilities, as determined by resident assessments and individual care plans. This includes providing licensed nurses and other nursing personnel on a 24-hour-per-day basis, designating a licensed nurse to serve as charge nurse for each shift and using the services of an RN for at least eight consecutive hours every day.

With these current standards, CMS has identified ongoing safety and quality concerns for residents receiving care in Medicare- and Medicaid-certified LTCFs due to chronic understaffing. The proposed rule points to evidence demonstrating the importance of staffing to resident health and safety, showing staffing levels are closely correlated to the quality of care that a resident receives and health outcomes. CMS outlines the need for these changes in staffing expectations due to continued insufficient workforce at LTCFs, noncompliance by a subset of facilities, the need to create a consistent lower threshold for nurse-to-resident ratios across states, and to reduce the risk of residents receiving unsafe and low-quality care.
The Biden administration’s efforts to establish consistent national minimum staffing standards in LTCFs uses a multifaceted approach, including relying on nursing home staffing studies conducted in 2001 and 2022 and through the FY 2023 Skilled Nursing Facility Prospective Payment System Proposed Rule, which sought public comments on minimum LTCF staffing standards. On April 18, 2023, President Biden issued an Executive Order on Increasing Access to High-Quality Care and Supporting Caregivers, directing the secretary of HHS to consider actions to address and reduce chronic understaffing in LTCFs. The study revealed a close correlation between staffing levels and the quality of care received by residents, with significant impacts on health outcomes.

Using the aforementioned studies and comments as guideposts, on September 6, 2023, HHS issued proposed rules and solicited comments regarding minimum staffing standards applicable to LTCFs that participate in Medicare and Medicaid. Specifically, if finalized in their proposed form, the proposed rules will require LTCFs to have an RN on site 24 hours per day, seven days per week. Additionally, LTCFs would be required to employ a sufficient number of RNs to provide 0.55 HPRD of direct patient services and a sufficient number of NAs to ensure residents receive 2.45 hours of care from an NA per resident per day. Notably, the proposed rules do not prescribe a minimum staffing standard for licensed practical nurses (LPNs) or licensed vocational nurses (LVNs) because studies showed more positive clinical outcomes are associated with increasing the number of RNs and NAs but no association between LPNs’ and LPVs’ HPRD at any level and safe, quality care. The reliance on LPNs and LPVs varies by state, and LPNs and LPVs often operate beyond their scope of licensure when RNs are insufficiently staffed.

B. Assessment Requirement

The proposed rules aim to create a consistent national minimum nursing staff standard to address the wide variations in state laws. Currently, 38 states and the District of Columbia have minimum staffing standards. The proposed RN requirement of 0.55 HPRD is lower than that of only the District of Columbia, while the proposed NA requirement of 2.45 HPRD exceeds all states, including the District of Columbia. Due in part to the disparate tapestry of state laws, CMS acknowledged concerns that there may be facilities that currently exceed the proposed minimum staffing levels and that may view this proposal as an incentive to lower staffing levels to meet the new minimums. CMS emphasized that, consistent with existing regulations, facilities must continue to conduct and document a facility-wide assessment of resources needed to competently care for residents (including obligations to identify the resident demographics and any ethnic, cultural or religious factors that may affect resident care) and of the facility’s existing and needed resources, as well as a facility and community-based risk assessment. These assessments would determine if a facility must provide more nursing services than the proposed federal floor, and whether staff must have particular competencies and skill sets to provide safe and quality care to residents. Facilities must also use the assessment to establish a staffing plan to address staff turnover and to propose ways to retain necessary staff. Assessments must continue to be used to determine necessary resources required to care for residents based on resident need, regardless of whether the facility is staffed at or above the new minimum requirements. It is likely that CMS and state regulators will review facilities’ assessments as part of licensure and certification processes.

C. Exemptions

CMS proposes certain exemption criteria for LTCFs struggling to comply with HPRD requirements due to workforce unavailability, shortages or challenges in hiring and retaining nursing staff, contingent on health and safety assessments; however, CMS is not proposing an exemption for the obligation to have an RN on site at all times. To qualify for an exemption, an LTCF must meet the following criteria:

  • Location: The LTCF must be located in an area where the supply of nursing staff is insufficient to meet geographic area needs or is 20 miles or more from the next-closest LTCF, as determined by CMS.
  • Demonstrated good-faith effort to hire and retain staff: LTCFs must document recruitment efforts and provide wages on par with regional averages.
  • Demonstrated financial commitment: LTCFs must provide documentation of their financial resources expended annually on nurse staffing relative to revenue.

Exemptions will not be granted to LTCFs that have failed to submit payroll-based journal system data, must not be designated as a special focus facility, and must not have been cited in the previous year for widespread insufficient staffing leading to resident harm. Exemptions, initially lasting one year, may be extended in one-year increments, with exempt facilities’ status published on the Nursing Home Care Compare website.

D. Implementation

The proposed minimum staffing standards will roll out in three stages over three years. The timeline below applies to facilities located in urban areas:

  • Phase 1 mandates compliance with new facility assessment requirements within 60 days of the final rule’s publication.
  • Phase 2 requires 24/7 RN availability compliance two years after publication of the final rule.
  • Phase 3 calls for compliance with the 0.55 RN HPRD and 2.45 NA HPRD requirements three years after publication of the final rule.

Rural LTCFs will follow a slightly different timeline to allow more time to comply with staffing requirements, following the same three phases but implemented over five years:

  • Phase 1 will follow the same timeline for LTCFs in urban areas, requiring compliance with the new facility assessment within 60 days of publication of the final rule.
  • Phase 2 requires 24/7 RN availability compliance three years after publication of the final rule.
  • Phase 3 compliance with the 0.55 RN HPRD and 2.45 NA HPRD will be required five years after publication of the final rule.

E. Impact

The potential impact of this rule is substantial, with an estimated 79% of LTCFs needing to increase their staff levels to meet the new requirements. CMS estimates that the new proposal will cost the LTCF industry more than $40 billion over the next 10 years. Meeting these new requirements or qualifying for an exemption may prove challenging for many facilities still struggling to recover from the devastating impact that COVID-19 had on the senior-services industry. As the proposed rule observed, NA positions experience high injury rates and require heavy lifting and considerable technical and interpersonal skills. Also, the median wage for NAs is generally lower than the median wage for other entry-level positions. Attracting individuals to fill crucial NA roles may require higher wages than have historically been offered, along with other creative ideas.

The proposed rule does not include any provision requiring Medicare to increase payment rates to providers to cover the costs of the proposed requirements. Penalties imposed by CMS for noncompliance with the proposed regulations include termination of the provider agreement, temporary management, denial of payment for all Medicare and/or Medicaid individuals by CMS, denial of payment for all new Medicare and/or Medicaid admissions, civil money penalties, state monitoring, transfer of residents, facility closure, directed plans of correction, directed in-service training, and alternative or additional state remedies approved by CMS. Penalties are based on the scope and severity of the impact on resident health and safety.

Amidst these significant challenges and ramifications, the Biden administration is offering solutions as part of a broader effort to reform quality and safety of care in the senior-services industry, including a focus by HHS and the Health Resources and Services Administration (HRSA) on stimulating participation in nursing careers. The HHS Health Workforce Initiative proposes large financial investments for HRSA to fund workforce training, scholarships, loan repayments and well-being programs across healthcare workforce disciplines, including nursing. HRSA also recently announced awards of more than $100 million to grow the nursing workforce through funding to help LPNs and LVNs become RNs, training nurses in gaining specific knowledge in primary care, mental health care and maternal healthcare service, and providing awards to nursing schools to provide low-interest loans and loan cancellation to incentivize careers as nursing-school faculty. This follows a 2022 HRSA announcement of $13 million in grants to expand nursing education and training, as well as the Department of Labor’s Nursing Expansion Grant Program (also announced in 2022) which will provide $80 million in grants to help address bottlenecks in training the US nursing workforce and expand and diversify the pipeline of qualified nursing professionals.

Because the proposed rule introduces an obligation for states to report the percentage of Medicaid payments allocated to compensation for direct-care workers and support staff on a facility-by-facility basis, it may become easier for consumers to select care facilities with sufficient staffing to meet residents’ needs and for government regulatory bodies to identify facilities in need of more oversight.

CMS is seeking comments on various aspects of the proposed rule, including different staffing models, setting standards for NAs, introducing non-nurse staffing requirements and exploring alternative minimum staffing policies based on nurse type and shift requirements. The comment period ends on November 6, 2023. Because this proposed rule represents a significant change in the regulatory landscape for LTCFs, stakeholders should carefully assess the rule’s implications and investigate the next steps required to achieve compliance.