Health Law Scan

Legal Insights and Perspectives for the Healthcare Industry

The Centers for Medicare & Medicaid Services (CMS) published its Final Rule today to implement a minimum staffing “floor” for nursing homes in the United States, as first announced on April 22. The Final Rule, which as proposed garnered significant attention and opposition, with over 46,000 public comments submitted, reflects the Biden administration’s efforts to implement staffing mandates to ensure quality of care for long-term care (LTC) nursing home residents.

The regulatory changes are highly controversial and face headwinds in US Congress, where both the House and Senate are considering bills to change these staffing mandates. There is also the potential for significant litigation over the new provisions. The timeline for compliance with these staffing requirements has a long runway, but all stakeholders must consider the reality of enhanced staffing now in light of workforce shortages and more focused regulatory requirements on staffing and facility plan of care assessments.

Key Staffing Provisions

The Final Rule requires nursing homes to have a minimum of 3.48 hours per resident day (HRPD), with each resident receiving at least .55 hours of care from a registered nurse (RN) per day and at least 2.45 hours of care from a nursing aid (NA) per day. A slight change from the proposed rule, which we covered back in September 2023, is that facilities will have flexibility to use a combination of staff (RNs, nurse practitioners, licensed vocational nurses, or certified nursing assistants) to provide the additional .48 HRPD needed to meet the minimum standard.

In addition to the minimum hours per resident per day, the Final Rule requires an RN on site at facilities 24 hours a day, seven days a week to provide direct patient care, which is aimed to address preventable safety events during more vulnerable times for residents, such as nights and weekends.

The Final Rule also includes a staggered implementation and provides for some regulatory flexibility in meeting the new standards.

The timeline for implementation of these requirements tracks from the Final Rule publication date (May 10, 2024) and will be staggered over a three-year period for all non-rural facilities as follows:

  • Phase 1: Within 90 days (August 10, 2024), facilities must meet the facility assessment requirements (42 CFR § 483.71)
  • Phase 2: Within two years (May 2026), facilities must meet the 3.48 HPRD total nurse staffing requirement and the 24/7 RN requirement (42 CFR § 483.35(b)(1) and (c)(1))
  • Phase 3: Within three years (May 2027), facilities must meet the 0.55 RN and 2.45 HPRD requirements (CFR § 483.35(b)(1)(i) and (ii))

CMS acknowledged that these requirements will be more challenging for facilities in more rural areas (as defined by the Office of Management and Budget) and has given them additional time: one year for Phase 2 and two years for Phase 3 to meet these standards.

CMS also announced that the agency is finalizing a proposal for hardship exemptions from the minimum staffing standards for HRPD and the 24/7 onsite RN requirements. The hardship exemptions are limited to facilities in geographic areas where the provider-to-population ratio for nursing work force is 20% below the national average. Those eligible facilities will be required to submit documentation of their efforts to recruit and retain staff, as well as a financial commitment to staffing.

Stakeholders should note that these exemptions are not a fallback position and must be actively pursued. Facilities that have not submitted data through the Payroll Based Journal System or have been identified as a special focus facility will not be eligible for an exemption after the fact.

Facility Assessments

While CMS already requires facilities to conduct and document an annual assessment, CMS also announced that it was finalizing additional requirements for these assessments with the goal of producing more individualized staffing plans. Facilities will be required to document methods for care planning for certain needs, such as residents with behavioral health issues, significant changes in census, facility leadership, and maximizing recruitment of staff.

Notably, facilities must develop a staffing plan to maximize recruitment and retention consistent with President Biden’s April 2023 Executive Order on Increasing Access to High-Quality Care and Supporting Caregivers. This Executive Order is far-reaching in ambition, but it is not clear if its provisions related to healthcare workforce recruitment and retention have been implemented to any degree.

CMS’s announcement specifically notes that one effect of these bolstered assessments could be facilities “staffing at levels above the finalized minimums as indicated by resident acuity.” How this expectation will be met by the industry is unknown at this time.

Staffing Resources and Incentives

In September 2023, CMS’s announcement of the proposed rule was accompanied by an initiative that would invest over $75 million as part of a nursing home staffing campaign, introducing incentives for workers to pursue careers as nursing home staff. Unfortunately, CMS’s Final Rule announcement did not provide any additional information on the program, noting that CMS is currently conducting research to “inform the structure of the program” and that the agency anticipates financial incentives (e.g., tuition reimbursement and scholarships) to begin distribution in 2025.

In essence, then, the LTC health sector is dealing with an unfunded mandate. CMS’s lack of acknowledgement of workforce realities and the dire nursing shortage for all healthcare providers, not simply those in service at LTC facilities, may critically undermine the important objectives of the staffing and care mandates. It is also the reason many credible health care organizations, such as the American Hospital Association, have not embraced the new regulatory paradigm, noting the final regulation will exacerbate the healthcare workforce crisis, even with the additional educational investments proposed.

They anticipate reduced nursing home admission capacity and the closure of many good nursing homes with high-quality metrics due to an inability to recruit nursing professionals to the heightened standards. Finally, regardless of the availability of nurse staff, the Final Rule absolutely requires facilities to spend more on staff.

Comments to the proposed rule suggest the cost of the staffing mandates will be staggering and not feasible, especially for smaller and rural nursing homes.

Key Takeaways

The Final Rule is ambitious in mandating staffing quotas in nursing homes in the United States, but there is much more work to be done by CMS for these new requirements to assure sustained quality care for nursing home residents, including increasing reimbursement for staffing and related activities and pioneering a sustainable national nursing professional recruitment and training effort. An unfunded mandate is not a prescription for success if experience is any guide.

Nevertheless, stakeholders need to prepare for the expectation of increased staffing and more specialized facility assessments without meaningful funding, and also closely monitor regulatory developments at the state and federal level. With 46,000 comments and federal legislation in the works to potentially block or modify the Final Rule, the story on federal nursing home staffing mandates is still being written.

For more information about the issues discussed in this post, please contact the authors.