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CMS Finalizes Minimum Staffing Requirements for Long Term Care (LTC) Facilities 04.22.2024

On April 22, 2024, the Centers for Medicare & Medicaid Services (CMS) issued the Minimum Staffing Standards for Long-Term Care Facilities and Medicaid Institutional Payment Transparency Reporting final rule and fact sheet. As part of the Biden Administration’s Nursing Home Reform initiative, this rule establishes national minimum nurse staffing standards to ensure safe and high-quality care for residents living in nursing homes.

The rule finalizes the following requirements:

  • That facilities provide minimum of 3.48 total nurse staffing hours per resident day (HPRD), and
  • That facilities provide minimum of 55 registered nurse HPRD and 2.45 nurse aid HPRD, and
  • A registered nurse to be on site 24 hours and 7 days per week,
  • Enhanced facility staffing assessments,
  • Hardship exemptions for certain facilities,
  • 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.

CMS estimates that 79 percent of nursing facilities nationwide would need to increase staffing to meet these standards.

This final rule is scheduled to be published in the Federal Register on May 10, 2024. These provisions are effective on June 21, 2024.

BACKGROUND ON NURSING STAFFING REQUIREMENTS

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 in order to improve safety and quality of care.[2] A central element of this reform was the establishment of minimum staffing standards, driven by multifaceted considerations. CMS states it is establishing 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 estimates the minimum staffing requirements will cost $43 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 1.2 million residents receiving care in Medicare and Medicaid certified LTC facilities.[3] CMS received 46,500 comments to the proposed rule.

FINAL MINIMUM STAFFING STANDARDS FOR NURSING HOMES

CMS finalizes the proposal 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 will track facility compliance with minimum staffing standards on the CMS Care Compare website.

Licensed Practical Nurses Will Count Towards Total Nursing Staffing Standard

Following backlash from stakeholders that Licensed Practical Nurses (LPNs) and Licensed Vocational Nurses (LVNs) were not included in HPRD requirements, CMS will allow these nurses to be counted.

Final Minimum Nurse Staffing Standards and RN On-Site Requirements, CMS Establishes Total Nurse Staffing Hours

CMS finalized the proposal 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] In addition, facilities will be required to meet 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, facilities must provide, at a minimum, 0.55 RN HPRD and 2.45 NA HPRD.

In the proposed rule, CMS solicited comments on establishing a total nurse staffing standard in addition to, or replacement of, the proposed RN and NA HPRD requirements. In response to feedback supportive of a total nurse staffing standard, CMS finalizes that, in addition to satisfying the RN and NA HPRD requirements, facilities must also provide a minimum of 3.48 total nurse staffing HPRD. Following backlash from stakeholders that Licensed Practical Nurses (LPNs) and Licensed Vocational Nurses (LVNs) were not included in HPRD requirements, CMS will allow the additional 0.48 HPRD to come from RNs, NAs, or LPNs/LVNs. However, LPNs/LVNs will not count specifically towards to minimum RN or NA HPRDs.

These minimum staffing requirements must be met regardless of the individual facility’s patient case mix. LTC Facilities must meet all requirements (i.e., the 24/7 RN requirement and the 0.55 RN HPRD, 2.45 NA HPRD, and 3.48 total nurse staffing 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 is required.

The final rule does not preempt the applicability of any state or local law establishing a higher staffing standing for nursing facilities. Facilities in states where Federal standards exceed the State and local minimum staffing standards must comply with the Federal law.

In response to comments that CMS should allow more flexibilities for facilities to meet the 24/7 RN requirement, such as having a “virtual” RN available by phone or video conference, CMS is adding an exemption for facilities that experience a hardship complying with the 24/7 RN requirement. This exemption was not in the proposed rule.

Exemptions

CMS finalizes exemptions from each of the requirements for certain facilities that apply for an exemption. Facilities could request exemption from any of the three HPRD requirements and an 8-hour per day exemption from the 24/7 RN requirement. CMS states that among rural facilities, more than 67 percent[7] would be eligible for the 8-hour exemption from the 24/7 RN requirement and a total exemption from the 0.55 RN HPRD requirement. However, these facilities must meet the following requirements:

  • Facility is located in an area where the supply of RN, NA, or total nurse staff is not sufficient to meet area needs as evidenced by the applicable provider-to-population ratio for nursing workforce (RN, NA, or combined licensed nurse and nurse aide), which is a minimum of 20% below the national average.
  • Facility provides documentation of good faith efforts to hire and retain staff
  • Facility provides documentation of the facility’s financial commitment to staffing, including the amount the facility expends on nurse staffing relative to revenue,
  • Facility is surveyed for compliance with LTC participation requirements,
  • Facility must have submitted data to the Payroll Based Journal (PBJ) System in accordance with re-designated 483.70(p), is not a Special Focus Facility (SFF)
  • Facility 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.

Facilities that are granted an exemption are required to:

  • Post a notice of its exemption status in a prominent and publicly viewable location in each resident facility,
  • Provide notice of its exemption status, and the degree to which it is not in compliance with the HPRD requirements, to each current and prospective resident,
  • Send a copy of the notice to a representative of the Office of the State Long-Term Care Ombudsman.

An exempted facility will also be listed on the Care Compare website. The facility must reapply for the exemption at the next standard recertification survey.

Facility Assessment Requirements

CMS also finalizes revisions to 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 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 finalizes 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 ensure that a member of the governing body and the medical director are active participants in the facility assessment process;
  • 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;
  • Requiring facilities to include the input from residents, resident family members; and
  • Requiring facilities to develop a staffing plan that maximizes recruitment and retention of staff.

Implementation Timelines

CMS finalizes a staggered implementation timeline for these requirements, with facilities in rural areas being given additional time to implement the RN and HPRD requirements. The facility assessment requirement will take effect 90 days after the publication of the final rule for both urban and rural facilities, as opposed to the original proposed timeline of 60 days.

The RN on site 24/7 requirement and 3.48 total nurse staffing HPRD requirements will take effect two years after publication of the final rule for urban facilities and three years after publication of the final rule for rural facilities.

The individual minimum standards of 0.55 HPRD for RNs and 2.45 HPRD for NAs will take effect three years after publication of the final rule for urban facilities and five years after publication of the final rule for rural facilities. Please see tables 1 and 2 for implementation timelines for facilities in urban and rural areas.

The inclusion of the 3.48 HPRD requirements in phase 2, as opposed to phase 3, of the implementation timeline is somewhat surprising, given that the other HPRD requirements are included in phase 3.

Table 1. Implementation Timeline for Facilities in Urban Areas
Phase 1: 90 days after final rule Must comply with facility assessment requirements 90 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 and the requirement of 3.48 total nurse staffing HPRD 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
Phase 1: 90 days after final rule Must comply with facility assessment requirements 90 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 and the requirement of 3.48 total nurse staffing HPRD 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

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. In addition, CMS will not limit determinations of compliance with HPRD to the most recent available quarter of PBJ System data submitted.

CMS FINALIZES INSTITUTIONAL PAYMENT REPORTING REQUIREMENTS FOR STATES

CMS also finalizes new institutional payment reporting requirements for State Medicaid agencies. States will 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 will also be required to operate a website that displays the results of these reporting requirements and CMS will list the results from all states on the CMS website. CMS estimates that the overall economic impact for the proposed reporting requirement is a one-time cost of $37.6 million and ongoing annual costs of $18.3 million per year.[8]

Data from Indian Health Service (IHS) and Tribal Health Programs are exempt from this requirement.

As CMS already finalized requirements in the Ensuring Access to Medicaid Services final rule[9] requiring states to publish all Medicaid fee-for-service (FFS) payment rates on an accessible website, the agency will not be finalizing the requirement that states report a single average statewide FFS per diem rate for nursing facility services and for ICF/IID.

The requirements will go into effect for FFS delivery systems four years following the effective date of the final rule. For managed care delivery systems, states will 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 will 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.” In this final rule, CMS has modified the definition of direct care workers to include staff such as nurses who provide clinical supervision and Direct Support Professionals (DSPs). The definition of support staff has also been modified to include security guards.

STEPS TO ADDRESS NURSING WORKFORCE SHORTAGE

In September 2023, CMS announced a national campaign to support staffing in nursing facilities through the Health Resources and Services Administration (HRSA) with an investment of $75 million in financial incentives.[10] In this final rule, CMS reiterated that it would provide tuition support, scholarships and streamline processes for enrolling in training programs and facility placement for nurses. CMS will also implement an awareness campaign to help recruit individuals and work with states to bolster recruitment. However, CMS did not share specific details about this campaign in the final rule.

Many stakeholders in their comments suggested other innovative ways CMS could use the $75 million to bolster the workforce, such as by providing student loan forgiveness or no interest loans for those entering the nursing profession. CMS stated that these issues are outside of the scope of this final rule.

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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-program-statistics-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] the number of facilities that would satisfy the workforce availability criterion, not those that qualify for exemptions

[9] https://www.cms.gov/newsroom/fact-sheets/ensuring-access-medicaid-services-final-rule-cms-2442-f

[10] https://www.cms.gov/newsroom/fact-sheets/medicare-and-medicaid-programs-minimum-staffing-standards-long-term-care-facilities-and-medicaid

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