On April 22, 2024, the Centers for Medicare and Medicaid Services (CMS) released a final rule that will require long-term care facilities (LTCFs) to satisfy minimum nurse staffing standards with the goal of addressing patient quality of care and safety concerns. Over the next five years, Medicare- and Medicaid-certified LTCFs, with limited exceptions, must:
All LTCFs must comply with the assessment requirements within 90 days of the final rule’s publication. LTCFs located in urban areas must fully comply with the staffing requirements within three years of the final rule based on a staggered implementation schedule. Rural LTCFs will be allowed five years to fully comply.
The COVID-19 pandemic exposed material gaps in care for residents of nursing homes and senior services facilities. Enhancing safety and ensuring high-quality care in these facilities has been a major focus for the Biden administration. After reviewing more than 46,000 comments on its minimum nursing staff requirements proposed rule, CMS released a final rule on April 22, 2024, that is anticipated to result in approximately 80% of LTCFs needing to add nursing staff. LTCFs will also be required to conduct periodic assessments of their resources and capabilities and to make staffing adjustments as needed to address residents’ acuity.
STAFFING REQUIREMENTS
Under existing CMS LTCF nursing services regulations promulgated pursuant to the nursing home reform provisions of the Omnibus Budget Reconciliation Act of 1987, LTCFs must have “sufficient nursing staff with the appropriate competencies and skills sets to provide nursing and related services to assure resident safety and attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident, as determined by resident assessments and individual plans of care and considering the number, acuity and diagnoses of the facility’s resident population.” (42 CFR § 483.35). Based on nursing home staffing studies conducted in 2001 and 2023, public comments submitted in response to the FY 2023 skilled nursing facility prospective payment system proposed rule, and the LTCF staffing proposed rule, CMS added minimum requirements to what it considers to be “sufficient nursing staff.” Medicare- and Medicaid-certified LTCFs will need to meet four related but independent staffing obligations:
While licensed practical nurses (LPNs) and licensed vocational nurses (LVNs) will be counted toward the total staff standard, they cannot be counted in place of RNs and NAs. This is because NA means “any individual providing nursing or nursing-related services to residents in a facility, [including] an individual who provides these services through an agency or under a contract with the facility, but is not a licensed health professional, a registered dietitian, or someone who volunteers to provide such services without pay.” (42 CFR § 483.5). The final rule also clarifies that LTCFs may meet the NA staff standard through certified nurse aides, aides in training, medication aides and technicians, but not through paid feeding assistants.
The above standards apply irrespective of the facility’s case mix, meaning that LTCFs must also ensure that sufficient additional personnel, including LPNs, LVNs, and other clinical and non-clinical staff, are present to ensure safe and quality care, and facilities must provide additional staff beyond these minimum thresholds when necessary to accommodate the specific needs of the LTCF’s resident population.
ASSESSMENT REQUIREMENT
Under current CMS regulations (42 CFR § 483.70(e)), LTCFs must conduct and document a facility-wide assessment to determine the necessary resources that a facility’s resident population requires for day-to-day operations and emergencies. This assessment must be reviewed and updated annually and as necessary, including whenever any changes in the facility or its population dictate a re-evaluation of the resident population, the facility’s resources, or a facility-based or community-based all-hazards risk assessment.
The final rule retains this general obligation and clarifies that facilities must address in their facility assessment details regarding their resident population; care required by the population based on behavioral health issues, cognitive disabilities and overall acuity; and other pertinent facts such as ethnic, cultural or religious factors that may affect resident care. LTCFs will be required to include the input of several categories of facility staff in the annual assessment. Not all such individuals need to be responsible for final approval of the facility assessment, but CMS expects the facility’s medical director, governing board, direct care staff, residents, residents’ families and residents’ representatives to be afforded an opportunity to provide input. LTCFs must also engage representatives of direct care staff, which CMS suggests may include union representatives, safety and health specialists, worker advocacy groups and community organizations.
LTCFs must ensure that their staff have the appropriate competencies and skills and must develop and maintain a staffing plan, including appropriate training, that maximizes recruitment and retention of nursing staff. If the assessment determines that additional nursing staff are needed, a facility’s compliance with the staff standards may not suffice to avoid a deficiency citation issued by state and federal surveyors. Conversely, if the assessment determines that the facility requires fewer nursing staff than the staff standards, the facility must still comply with the federal requirements – and any state requirements to the extent the state imposes more stringent standards.
TEMPORARY HARDSHIP EXEMPTIONS
CMS will provide a temporary hardship exemption from the staff standards and modification of the 24-hour standard if the facility is surveyed for compliance with the LTCF participation requirements and meets the following:
A facility is not eligible for an exemption if it fails to submit data to the payroll based journal system, has been cited for having widespread staffing issues or a pattern of insufficient staffing that resulted in resident actual harm, has received an immediate jeopardy-level citation for staffing insufficiency within the preceding 12-month period, or is deemed a Special Focus Facility.
Facilities will retain an exemption until their next standard recertification survey unless they receive an immediate jeopardy-level citation or staffing insufficiency, fail to submit required data or are deemed a Special Focus Facility. The exemption may be extended on each standard recertification survey if the facility continues to meet the criteria.
IMPLEMENTATION
The final rule will become effective according to a staggered schedule that provides facilities with time to prepare and comply with the new requirements. Facilities are expected to take proactive steps promptly to recruit, retain and hire nursing staff to meet the staff standards as well as the needs identified in the facility’s assessment.
Urban and rural definitions will follow those set forth by the US Census Bureau.
ENFORCEMENT
Specific instructions on how facilities’ compliance will be assessed will be forthcoming through subregulatory guidance published through CMS’s Quality, Safety and Oversight Group memoranda and the CMS State Operations Manual. CMS anticipates that its primary enforcement mechanism will be its existing survey and certification processes. LTCFs found not in substantial compliance with the aforementioned staff standards, 24-hour standard and self-assessment requirements may be found to violate Medicare and Medicaid conditions of participation. CMS and state Medicaid agencies have flexibility to impose myriad enforcement remedies, including but not limited to:
The remedy that is chosen will reflect the scope and severity of deficiencies and how they impact residents’ health and safety.
Facilities’ survey and certification results will continue to be published on CMS’s public facing Care Compare website, with three individual star ratings reflecting a facility’s inspections, staffing and quality scores. CMS will also begin publishing specific staffing measurements, including total number of nurse staff HPRD, RN HPRD, LPN/LVN HPRD and NA HPRD.
IMPACT
CMS acknowledges in the final rule’s summary of cost and benefits that implementation of the new staffing requirements will cost LTCFs $43 billion over 10 years and notes that LTCFs are responsible for these costs. CMS notes that nonprofit nursing homes were three times more likely to be in compliance with the staff standards.
LTCFs in urban settings will need to fill approximately 10,500 RN positions (a 9.7% increase) and 35,300 NA positions (a 9.9% increase) to comply with the staff standards, and 3,267 LTCFs will need to hire RNs to meet the 24-hour standard. Louisiana has the greatest need for RNs to meet the RN staff standard statewide, with 730 of 1492 positions in need of filling. Delaware is the most understaffed state with regard to NA positions, requiring an 18.3% increase over its current NA staffing census.
In rural settings, approximately 2,100 additional RN positions (an 8% increase) and 8,800 NA positions (a 9.2% increase) are needed. Louisiana again has the greatest need for RNs in rural settings, with 262 of 454 RN positions filled. Georgia has the greatest need for NAs, requiring a 19.5% increase to meet the 2.45 HPRD NA staff standard state-wide.
To support LTCFs’ nursing staff needs, CMS has committed more than $75 million to launch an initiative to help increase the long-term care workforce. CMS’s funds will go towards tuition reimbursement and technical assistance through quality improvement organizations. Notwithstanding the foregoing, the $75 million dollar investment is far below the $43 billion cost projection for the new regulation, and the final rule is likely to be challenged in court.
For more information, please contact Debra Curtis, Gregory E. Fosheim (McDermott Will & Emery–Partner) and Monica Wallace (McDermott Will & Emery–Partner).
