On Tuesday, April 23, 2024, the Centers for Medicare & Medicaid Services (CMS) published the final rule, implementing minimum staffing standards for nursing homes intended to increase staffing levels and improve patient care in nursing homes. The Biden Administration’s announcement is controversial.

CMS has faced fierce opposition from the nursing home industry and Republicans in Congress who see these requirements as an unfunded mandate. It establishes, for the first time, national minimum staffing standards for nursing homes that collect taxpayer money through Medicare- and Medicaid-funded services. The staffing requirements will be phased in over the next two to five years, and CMS has made provisions to grant exemptions for care facilities in rural areas with a shortage of available caregivers.

Inadequate staffing has long been considered the single biggest contributor to poor quality care in nursing homes and is a major, recurring issue in nursing homes in both NJ and PA.

CMS officials said Tuesday they don’t expect the new rule to force any facilities to close, noting that some states have imposed even higher staffing level requirements with no resulting shutdowns. The new rule has been two years in the making, and CMS has fielded more than 46,000 public comments on it from caregivers, residents, industry representatives, and resident advocates.

It is important to note that the new rule announced this week establishes only “the minimum permissible staffing levels” that care facilities must meet. Under federal rules issued earlier, all facilities are also required to conduct, at least annually, a facility assessment. This process requires each facility to determine the actual nursing needs of its own residents and to ensure that it has enough staff with the necessary skills to meet its residents’ needs. Properly implemented and enforced, the facility assessment process will require many facilities to implement higher staffing levels in accordance with these new minimum staffing standards.

The specific provisions of the new rule include elements related to staffing, public disclosure, and resident assessments:

Nursing care: Residents must receive at least 3.48 hours of nursing care per day, which would include at least 0.55 hours of care from a registered nurse per resident, per day, as well as 2.45 hours of care from a certified nurse aide per resident, per day.

Around-the-clock nurse availability: All homes must have a registered nurse on site 24 hours per day, seven days per week. The nurse must be available to deliver critical care to residents at any time.

Self-assessments: Aside from meeting the new minimum staffing standards, all facilities will be required to perform annual assessments to determine the actual level of staffing needed to meet all residents’ needs. Those assessments, which will be more detailed than those currently required, are intended to address the fact that many care facilities already meet the new minimum standards but are still failing to meet residents’ needs due to heightened levels of acuity or the need for one-on-one supervision.

Staff retention: Each facility will be required to at least develop a formalized plan to maximize their workforce recruitment and retention efforts. To help ensure compliance, CMS will also be requiring states, to which much of the enforcement efforts are delegated, to collect and report on the percentage of Medicaid payments spent on compensation for direct care workers and support staff.

CMS has also pledged $75 million to be spent on a national nursing home staffing campaign aimed at increasing the number of nurses working in long-term care facilities. As part of that effort, CMS will be providing financial incentives for nurses to work in nursing homes. In announcing the new requirements, CMS acknowledged that some facilities are “experiencing challenges in hiring and retaining certain nursing staff because of local workforce unavailability.” To address that, the agency will offer waivers for the rule requiring a nurse to be on site 24 hours per day and will also offer “financial hardship exemptions” to the staffing requirement.

The facilities that seek such an exemption will first have to show they’re in an area where the supply of nurses is at least 20% below the national average as calculated by the U.S. Bureau of Labor Statistics and U.S. Census Bureau.

They’ll also have to provide documentation of good faith efforts to hire and retain staff, including the payment of competitive wages, and they’ll have to disclose the amount of money spent on nurse staffing relative to the home’s total revenue.

Facilities that are granted an exemption will then have to post a notice of its exemption status in a prominent, publicly accessible location inside the facility, and will have to provide any prospective residents with written notice of the exemption status. Some homes will not be considered for exemption, including those on CMS’ list of special-focus facilities that have a history of repeat serious violations, and those recently cited for a pattern of insufficient staffing that has resulted in harm to residents.

For most facilities, the new minimum staffing standards will be phased in over the next two years, but that timeline has been extended to accommodate the needs of rural facilities where the workforce shortage is particularly acute. Rural facilities will have 90 days to meet the new rule on facility assessments. They’ll have three years to meet the requirements of 3.48 hours of total nurse staffing and a 24-hour nurse and five years to meet the more specific requirements of 0.55 registered nurse hours per day, per resident.

More information will be forthcoming as it becomes available.