On September 1st, the Centers for Medicare & Medicaid Services (CMS) issued the long-awaited Minimum Staffing Standards for Long-Term Care Facilities and Medicaid Institutional Payment Transparency Reporting proposed rule. As part of the Biden Administration’s Nursing Home Reform initiative, this rule includes proposals to establish national minimum nurse staffing standards to ensure safe and high-quality care for residents living in nursing homes.
The rule proposes to require:
- A registered nurse to be on site 24 hours and 7 days per week, AND
- That facilities provide minimum of 55 registered nurse hours per resident day (HPRD) and 2.45 nurse aid HPRD
- Enhanced facility staffing assessments
- States to report the percentage of Medicaid payments for certain Medicaid-covered institutional services that are spent on compensation for direct care workers and support staff.
If finalized, CMS estimates that 75 percent of nursing facilities nationwide would need to increase staffing to meet the proposed standards.
The rule is expected to be published in the Federal Register on September 6, 2023. Comments are due November 6, 2023.
BACKGROUND
President Biden first announced that his administration would be proposing minimum staffing standards for nursing homes on February 28, 2022.[1] On April 18, 2023, President Biden issued “Executive Order on Increasing Access to High-Quality Care and Supporting Caregivers,” which directed the Secretary of HHS to consider actions to encourage LTC facilities to reduce nursing staff turnover that is associated with improving safety and quality of care.[2] A central element of this reform was the establishment of minimum staffing standards, driven by multifaceted considerations.
According to CMS, the proposals in this rule are also a result of the growing body of evidence demonstrating the importance of staffing to resident health and safety, non-compliance by a subset of facilities, and the need to reduce variability in the minimum floor for nurse-to-resident ratios across states. CMS states it is proposing minimum staffing standards because staffing levels are closely correlated with improved health outcomes and with the quality of care that LTC facility residents receive.
CMS EXPECTS IMPLEMENTATION TO BE COSTLY FOR FACILITIES; STAKEHOLDERS ON BOTH SIDES CRITIZE THE PROPOSAL
CMS estimates the minimum staffing requirements will cost $40.6 billion over 10 years of implementation. LTCs will have to bear the burden of these costs. CMS states the provisions will save the Medicare program $318 million per year beginning in year 3. There are currently 1.4 million residents receiving care in Medicare and Medicaid certified LTC facilities.[3] CMS states that its proposals were informed additionally by over 3,000 responses to the solicitation for public comments on minimum staffing standards included by CMS in the fiscal year 2023 skilled nursing facilities prospective payment system request for information.
CMS is receiving backlash from both sides of the aisle as minimum staffing standards supporters argue 3.0 hours HPRD is insufficient to achieve meaningful improvement in quality of care and critics argue the proposal does not to address workforce shortages in the industry.
PROPOSED MINIMUM STAFFING STANDARDS FOR NURSING HOMES
CMS proposes to update the Federal participation “Requirements for Medicare and Medicaid LTC Facilities” minimum staffing standards used to survey facilities for compliance as part of CMS’s survey, certification, and enforcement process for LTC facilities. LTC facilities include Skilled Nursing Facilities (SNFs) for Medicare and Nursing Facilities (NFs) for Medicaid. CMS intends to display determinations of facility compliance with minimum staffing standards on the CMS Care Compare website.
Proposed Minimum Nurse Staffing Standards and RN On-Site Requirements
Specifically, CMS proposes to require a registered nurse (RN) to be on site 24 hours per day, 7 days a week to provide skilled nursing care to all residents in accordance with resident care plans in LTC facilities.[4] CMS also proposes minimum staffing type standards based on case-mix adjusted data for RNs and nurse aides (NAs) to supplement the current “Nursing Services” requirements.[5] Specifically, CMS proposes that facilities must provide, at a minimum, 0.55 RN HPRD and 2.45 NA HPRD. These minimum staffing requirements must be met regardless of the individual facility’s patient case mix. LTC Facilities must meet both requirements (i.e., the 24/7 RN requirement and the 0.55 RN HPRD and 2.45 NA HPRD requirements). [6]
CMS notes that these standards only reflect the absolute minimum floor based on the average acuity across all LTC facilities, so the required hours of nursing care may be greater but never lower than these proposed minimum standards. If the acuity needs of residents in a facility require a higher level of care, a higher RN and NA staffing level should be reflected. CMS seeks additional comments on whether, in addition to these standards, a minimum total nurse staffing standard should be required.
Facility Assessment Requirements
CMS also proposes to revise the existing Facility Assessment requirement to ensure that facilities have an efficient process for consistently assessing and documenting the necessary resources and staff that the facility requires to provide ongoing care for its population, based on the specific needs of its residents. On an annual basis, LTC facilities are already required to conduct, document, and review a facility-wide assessment to determine what resources are necessary to care for residents. To ensure facilities are making thoughtful, person-centered staffing plans – and decisions focused on meeting resident needs – CMS is proposing updates to the facility assessment including:
- Clarifying that facilities must use evidence-based methods when planning care for their residents and consider residents with behavioral health needs;
- Requiring facilities 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;
- Requiring facilities to include the input of facility staff including but not limited to nursing home leadership, management, direct care staff (i.e., nurse staff), representatives of direct care staff, and staff who provide other services; and,
- Requiring facilities to develop a staffing plan that maximizes recruitment and retention of staff.
Implementation Timelines
CMS proposes staggering the implementation dates of these requirements. The facility assessment requirements would take effect 60 days after publication of the final rule. The RN on site 24/7 requirement would take effect 2 years after publication of the final rule. The individual minimum standards of 0.55 HPRD for RNs and 2.45 HPRD for NAs would take effect 3 years after publication of the final rule. Facilities in rural areas would be given additional time to implement each of these requirements. Please see tables 1 and 2 for implementation timelines for facilities in urban and rural areas.
| Table 1. Implementation Timeline for Facilities in Urban Areas[7] | |
| Phase 1: 60 days after final rule | Must comply with facility assessment requirements 60 days after the publication date of the final rule. |
| Phase 2: 2 years after final rule | Must comply with the requirement for an RN onsite 24 hours and seven days/week two years after the publication date of the final rule. |
| Phase 3: 3 years after final rule | Must comply with the minimum staffing requirements of 0.55 and 2.45 hours per resident day for RNs and NAs, respectively, three years after the publication date of the final rule. |
| Table 2. Implementation Timeline for Facilities in Rural Areas[8] | |
| Phase 1: 60 days after final rule | Must comply with facility assessment requirements 60 days after the publication date of the final rule. |
| Phase 2: 3 years after final rule | Must comply with the requirement for an RN onsite 24 hours and seven days/week three years after the publication date of the final rule. |
| Phase 3: 5 years after final rule | Must comply with the minimum staffing requirements of 0.55 and 2.45 hours per resident day for RNs and NAs, respectively, five years after the publication date of the final rule. |
Enforcement Actions
CMS proposes that enforcement actions/remedies would be taken against LTC facilities not in compliance with these Federal participation requirements. Remedies may include but are not limited to termination of the provider agreement, denial of payment for all Medicare and/or Medicaid residents in the facility, and/or civil monetary penalties.
Exemptions
CMS proposes to allow exemptions from the proposed minimum standards of 0.55 HPRD for RNs and 2.45 HPRD for NAs only in the case that all four of the following criteria are met:
- Where workforce is unavailable, or the facility is at least 20 miles from another long-term care facility, as determined by CMS,
- the facility is making a good faith effort to hire and retain staff,
- the facility provides documentation of its financial commitment to staffing, and
- the facility has not failed to submit Payroll-Based Journal data in accordance with re-designated 483.70(p), is not a Special Focus Facility (SFF); has not been cited for widespread insufficient staffing with resultant resident actual harm or a pattern of insufficient staffing with resultant resident actual harm, as determined by CMS; and has not been cited at the “immediate jeopardy” level of severity with respect to insufficient staffing within the 12 months preceding the survey during which the facility’s non-compliance is identified.
CMS ACTIONS AND CONSIDERATIONS THAT INFORMED MANDATORY MINIMUM STAFFING STANDARDS PROPOSAL
To determine the provisions surrounding the establishment of minimum staffing standards, CMS used several avenues to gather information including a Request for Information (RFI) issued in April 2022,[9] listening sessions with various stakeholders, and the Nursing Home Staffing Study, conducted in 2022.[10]
2022 Request for Information and Listening Sessions
The Fiscal Year (FY) 2023 Skilled Nursing Facility Proposed Rule, released in April 2022, included an RFI soliciting input from an array of parties, resulting in over 3,000 comments showcasing different opinions on the implementation of minimum staffing standards in nursing homes.
According to CMS, key stakeholders including advocacy groups and family members of nursing home residents, provided strong support for minimum staffing standards. Their support was rooted in genuine safety concerns stemming from chronic understaffing, which had led to issues such as inadequate care and resident abuse. Recommendations arising from these stakeholders included the proposal of having a RN available on every shift or adopting an acuity-based staffing model.
Local ombudsmen also expressed concerns, with a 2020 Office of the Inspector General (OIG) report echoing these issues.[11] It highlighted problems such as unanswered call lights, medication errors, and inadequate bathing due to staffing shortages, particularly on weekends. These concerns were closely tied to insufficient leadership and a shortage of NAs.
The comments received also delved into the various factors that influence nursing homes’ capacity to meet staffing standards. These factors included Medicaid census, ownership, competition, and resident acuity. Recruitment and retention challenges were discussed extensively, with most stakeholders advocating for competitive wages for staff. However, some noted challenges stemming from reduced facility payments.
2022 Nursing Home Staffing Study
CMS states that the 2022 Nursing Home Staffing Study was a pivotal step in addressing the critical issue of staffing standards within nursing homes. It built upon the groundwork laid by a previous study, the 2001 CMS Staffing Study,[12] which explored the relationship between staffing levels and the quality of care provided in nursing homes.
Unlike its predecessor, the 2022 study adopted a comprehensive approach, including both non-empirical and empirical analyses. These analyses encompassed a systematic literature review, qualitative analysis, observation study, quantitative analyses, and cost analyses. Clinical outcomes were defined using Care Compare quality measures, and patient safety was assessed through health inspection surveys.
Key findings in this study included:
- Literature and Testimonials: Recent literature and testimonials underscored the critical importance of staffing in ensuring resident health and safety. However, the lack of a universal methodology for setting specific minimum staffing standards resulted in variations across states.
- Variability in Nurse Staffing: Nurse staffing levels exhibited significant variations based on facility characteristics and state regulations. The proposed requirement of 0.55 HRPD for RNs exceeds the standards in most states, while the proposed requirement of 2.45 HPRD for Nas surpasses the requirements in all states.
- Staffing and Quality of Care: The relationship between staffing and the quality of care varied by staff type and level. Notably, RN staffing levels of 0.45 HPRD or more were strongly correlated with safety and quality care. Similarly, NA staffing levels of 2.45 HPRD or more exhibited a strong association with quality care and safety. However, there was no significant correlation between hours of Licensed Practical Nurses (LPN/LVNs) and safety or quality of care.
- Cost-Benefit Analysis: Increasing nursing staffing levels came with both financial costs for LTC facilities and benefits in terms of safety and quality improvements. Balancing these costs and benefits was a central consideration.
Stakeholder Response
Following its (accidental) early release on August 29, CMS’s Nursing Home Staffing Study has been met with backlash and concern. The nursing home industry opposed the idea of a uniform patient-to-staff ratio, citing workforce challenges and arguing for increased Medicaid payments to support higher staffing levels. Critics accused CMS of bias, as all analyzed staffing thresholds were below the previously recommended level of 4.1 staff hours per resident per day in the 2001 study. This controversy underscores the ongoing challenges and debates surrounding nursing home staffing and the government’s efforts to address them.[13]
Despite the criticism, CMS’s principal deputy administrator, Jonathan Blum, emphasized the agency’s commitment to ensuring the health and safety of nursing home residents through adequate staffing.[14]
CMS PROPOSES INSTITUTIONAL PAYMENT REPORTING REQUIREMENTS FOR STATES
CMS also proposes new institutional payment reporting requirements for State Medicaid agencies. Under the proposal, States would be required to annually report the percentage of Medicaid payments for services in nursing facilities and intermediate care facilities for individuals with intellectual disabilities (ICF/IID) that were spent on compensation for direct care workers and support staff. States would also be required to operate a website that displayed the results of these reporting requirements. CMS would then display the results from all States on their own website. CMS estimates that the overall economic impact for the proposed reporting requirement is a one-time cost of $38 million and ongoing annual costs of $18 million per year.[15]
For fee-for-service (FFS) delivery systems, CMS is proposing a requirement that States report a single average statewide FFS per diem rate for nursing facility services and for ICF/IID services. States with managed care delivery systems would not be required to report contractually negotiated rates for individual providers.
The requirements would go into effect for FFS delivery systems four years following the effective date of the final rule. For managed care delivery systems, States would be given until the first managed care plan contract rating period that began on or after this date to comply. States would only report on payments where Medicaid was the primary payer, so the requirements would not extend to cost-sharing payments on behalf of dually eligible beneficiaries.
The definition of direct care workers used by CMS is intentionally broad, ranging from nurses to licensed physical therapists to social workers to feeding assistants. The definition of support staff is similarly broad, encompassing all workers who are not direct care workers and who “maintain the physical environment of the care facility or support other services (such as cooking or housekeeping) for residents.”
While CMS is not proposing any requirements around a minimum percentage of Medicaid payments for these services that must be spent on compensation for direct care workers and support staff, the agency is interested in proposing such a requirement in the future. CMS is soliciting comment on several aspects of the proposal, including the definitions of compensation, direct care worker, and support staff, the frequency of reporting, and whether reporting requirements should include data on the median compensation for direct care workers and support staff.
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This Applied Policy® Summary was prepared by Simay Okyay McNutt with support from the Applied Policy team of health policy experts. If you have any questions or need more information, please contact her at sokyay@appliedpolicy.com or at (202) 558-5272.
[1] https://www.whitehouse.gov/briefing-room/statements-releases/2022/02/28/fact-sheet-protecting-seniors-andpeople-with-disabilities-by-improving-safety-and-quality-of-care-in-the-nations-nursing-homes/
[2] Executive Order on Increasing Access to High Quality Care and Supporting Caregivers. White House. Accessed at https://www.whitehouse.gov/briefing-room/presidential-actions/2023/04/18/executive-order-on-increasingaccess-to-high-quality-care-and-supporting-caregivers/. Published on April 18, 2023.
[3] https://data.cms.gov/summary-statistics-on-use-and-payments/medicare-service-type-reports/cms-programstatistics-medicare-skilled-nursing-facility
[4] Revising § 483.35(b).
[5] Existing “Nursing Services” requirements can be found at 42 CFR 483.35(a)(1)(i) and (ii).
[6] Hours per resident day (HPRD) is defined as staffing hours per resident per day which is the total number of hours worked by each type of staff divided by the total number of residents as calculated by the CMS.
[7] See table 4 on page 94 of the unpublished rule.
[8] See table 5 on page 94 of the unpublished rule.
[9] 87 FR 22720, pages 22771-22772
[10] Abt. Associates. The Nursing Home Staffing Study Comprehensive Report. June 2023. https://edit.cms.gov/files/document/nursing-home-staffing-study-final-report-appendix-june-2023.pdf
[11] https://oig.hhs.gov/oei/reports/OEI-04-18-00450.pdf
[12] Appropriateness of Minimum Nurse Staffing Ratios in Nursing Homes, 2001: https://www.justice.gov/sites/default/files/elderjustice/legacy/2015/07/12/Appropriateness_of_Minimum_Nurse_Staffing_Ratios_in_Nursing_Homes.pdf;
[13] https://kffhealthnews.org/news/article/cms-study-nursing-home-staffing-levels/
[14] Ibid.
[15] See table 1 on page 10 of the unpublished rule.