Articles

Summary of New CMS LTC Facility Staffing Mandates

Date: April 23, 2024
Even after a large amount of industry pushback, CMS issued the final rule for minimum staffing requirements and institutional payment transparency for long-term care (LTC) facilities. While stakeholders have indicated that the rule could put more pressure on current staff and lead to further workforce burnout, CMS insists the regulations are needed to ensure safety of the nation’s vulnerable populations. The final rule is available to review in the Federal Register at: https://www.federalregister.gov/public-inspection/2024-08273/medicare-and-medicaid-programs-minimum-staffing-standards-for-long-term-care-facilities-and-medicaid.

Key Provisions of the rule include:
  • Continued finalization of a facility assessment requirements and a requirement to have an RN onsite 24 hours a day, seven days a week, to provide skilled nursing care;
  • Staggered implementation timeframe of the minimum nurse staffing standards and 24/7 RN requirement based on geographic location;
  • Possible exemptions for qualifying facilities for some parts of these requirements based on workforce unavailability and other factors; and
  • Collection and reporting on the percentage of Medicaid payments that are spent on compensation for direct care workers, and support staff, delivering care in nursing facilities and intermediate care facilities, for individuals with intellectual disabilities.
     
CMS stated in its press release Monday that it will closely monitor and evaluate the provisions of this final rule as they are implemented over the next several years to determine whether any updates or changes are necessary in the future. Further details on the primary areas are below.

Minimum Staffing Standards
While CMS is still finalizing a total nurse staffing standard, based on public comment feedback, the plan is still to require facilities to provide a minimum of 3.48 HPRD of total direct nursing care to residents, of which at least 0.55 HPRD of care must be provided by RNs and 2.45 HPRD of care provided by nurse aides. Facilities may use any combination of nurse staff (RN, licensed practical nurse (LPN) and licensed vocational nurse (LVN), or nurse aides) to account for the additional 0.48 HPRD needed to comply with the total nurse staffing standard. A total nurse staffing standard provides for more hours of direct care to residents while also allowing facilities to utilize other direct care nurse staff, such as LPNs/LVNs in meeting the minimum standard.

While these are minimum staffing standards, CMS noted it expects LTC facilities to use the updated and newly strengthened facility assessment to determine whether their staffing needs to be set above these minimums, based on resident acuity and individual care needs.

RN On-Site Requirement
CMS opined that an RN onsite 24 hours a day, seven days a week requirement ensures that there is an RN available to help mitigate and reduce the possibility of preventable safety events, particularly during evenings, nights, weekends, and holidays. CMS is finalizing, with revisions to its proposal, the requirement for an RN to be onsite 24 hours a day, seven days a week, and available to provide direct resident care. The 24/7 RN on site can be the Director of Nursing (DON); however, they must be available to provide direct resident care.

Strengthening the Facility Assessment Requirement
LTC facilities are already required to conduct, document, and review, annually and as necessary, a facility-wide assessment to determine what resources are necessary to care for residents competently during both day-to-day operations and emergencies.

Person-centered staffing plans and decisions focused on meeting resident needs, including staffing at levels above the finalized minimums as indicated by resident acuity, CMS is finalizing the following:
  • Facilities must use evidence-based methods when planning care for their residents, including consideration for those residents with behavioral health needs.
  • Facilities must use the facility assessment 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.
  • Facilities must include the input of the nursing home leadership, including but not limited to, a member of the governing body and the medical director; management, including but not limited to, an administrator and the director of nursing; and direct care staff, including but not limited to, RNs, LPNs/LVNs, and NAs, and representatives of direct care staff as applicable. The LTC facility must also solicit and consider input received from residents, resident representatives, and family members.
  • Facilities are required to develop a staffing plan to maximize recruitment and retention of staff consistent with what was described in the President’s April Executive Order on Increasing Access to High-Quality Care and Supporting Caregivers.
     
Permitting Regulatory Flexibility
In addition to the existing statutory waiver of the requirement to provide licensed nurses on a 24-hour basis, CMS is finalizing our proposal for hardship exemptions, with some modifications, to apply in limited circumstances, to the HPRD and 24/7 onsite RN requirements.

LTC facilities may qualify for a temporary hardship exemption from the minimum nurse staffing HPRD standards and the 24/7 RN requirement only if they meet the following criteria for geographic staffing unavailability, financial commitment to staffing, and good faith efforts to hire:
  • The 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 the nursing workforce (RN, NA, or combined licensed nurse and nurse aide) the below circumstances that could produce an exemption. The facility may receive an exemption from the total nurse staffing requirement of 3.48 HPRD if the combined licensed nurse and nurse aide to population ratio in its area is a minimum of 20% below the national average. The facility may receive an exemption from the 0.55 RN HPRD requirement, and an exemption of eight hours a day from the RN on-site 24 hours per day for seven days a week requirement if the RN to population ratio in its area is a minimum of 20% below the national average. The facility may receive an exemption from the 2.45 NA HPRD requirement if the NA-to-population ratio in its area is a minimum of 20% below the national average.
     
Application for Hardship Exemption
Eligible LTC facilities that meet the criteria will receive a temporary hardship exemption by completing the following:
  • The facility provides documentation of good faith efforts to hire and retain staff, such as through job postings, the number and duration of vacancies, job offers made, and competitive wage offerings.
  • The facility provides documentation of the facility’s financial commitment to staffing, including the amount the facility expends on nurse staffing relative to revenue.
  • Prior to being considered, the LTC facility must be surveyed for compliance with the LTC participation requirements.
     
CMS will coordinate with state survey agencies to determine if the facility meets the criteria for a hardship exemption noted above. Facilities that are granted an exemption will be required to:
  1. Post a notice of its exemption status in a prominent and publicly viewable location in each resident facility;
  2. 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; and
  3. Send a copy of the notice to a representative of the Office of the State Long-Term Care Ombudsman.
LTC facilities that successfully obtain an exemption will be posted on the Medicare.gov Care Compare website.

Facilities are not eligible for an exemption if any one of the following is true:
  • The LTC has failed to submit their data to the Payroll Based Journal System.
  • The LTC has been identified as a special focus facility (SFF).
  • The LTC has been identified within the preceding 12 months as having: widespread, or a pattern of, insufficient staffing that resulted in actual harm to a resident; or an incident of insufficient staffing that caused or is likely to cause serious harm or death to a resident.
     
If a facility meets the requirements for the hardship exemption criteria, the exemption will be granted until the next standard recertification survey, unless the facility meets any of the criteria for not being eligible for the exemption during that time during the exemption period. The hardship exemption may be extended on each standard recertification survey, after the initial period, if the facility continues to meet the exemption criteria.

Phased Implementation
The implementation of the minimum nurse staffing requirements is to occur in three phases over a three-year period for all non-rural facilities as follows:
  • Phase 1 — Within 90 days of the final rule publication, facilities must meet the facility assessment requirements.
  • Phase 2 — Within two years of the final rule publication, facilities must meet the 3.48 HPRD total nurse staffing requirement and the 24/7 RN requirement.
  • Phase 3 — Within three years of the final rule publication, facilities must meet the 0.55 RN and 2.45 NA HPRD requirements.
     
CMS is finalizing later implementation dates for facilities located in rural areas (as defined by the Office of Management and Budget):
  • Phase 1 — Within 90 days of the final rule publication, facilities must meet the facility assessment requirements.
  • Phase 2 — Within three years of the final rule publication, facilities must meet the 3.48 HPRD total nurse staffing requirement and the 24/7 RN requirement.
  • Phase 3 — Within five years of the final rule publication, facilities must meet the 0.55 RN and 2.45 NA HPRD requirements.
     
Medicaid Institutional Payment Transparency
CMS highlighted that chronic understaffing and high rates of worker turnover in nursing facilities and ICFs/IID has hindered access to high-quality services for people with disabilities and older adults. To promote public transparency related to the percentage of Medicaid payments for services in nursing facilities and ICFs/IID, CMS wants to gain more insight on how much reimbursement is spent on compensation to direct care workers and support staff. Notable provisions of this requirement include:
  • New reporting requirements on institutional payment. This requires states to report to CMS on the percentage of Medicaid payments for services in nursing facilities and ICFs/IID that is spent on compensation for direct care workers (such as nursing and therapy staff) and support staff (such as housekeepers and drivers providing transportation for residents). These requirements apply regardless of whether a state’s LTSS delivery system is fee-for-service or managed care.
  • Support for quality care and worker safety by excluding costs of travel, training, and personal protective equipment (PPE) from the calculation of the percent of Medicaid payments going to compensation. Excluding the costs of training, travel, and PPE from the calculation will help ensure that nursing facilities and ICFs/IID continue to invest in these critical activities and items, without providers being concerned that these costs will count against their spending on compensation to direct care workers and support staff.
  • Providing an exemption for the Indian Health Service and Tribal health programs subject to 25 U.S.C. 1641 from the reporting requirements.
  • Promoting the public availability of Medicaid institutional payment information, by requiring that both states and CMS make the institutional payment information reported by states available on public-facing websites.
     
Nursing Home Staffing Campaign
As announced in September 2023, CMS plans to invest $75 million to promote a nursing home staffing campaign that will include financial incentives for nurses to work in the nursing home environment.

CMS also plans to invest money to streamline the process for nurses’ aides for enrolling in training programs and finding placement in a nursing home. Finally, we will be using the campaign to promote awareness of the many career pathways in the nursing field that are available to help recruit all types of individuals.

Currently conducting comprehensive research to inform the structure of the program and look forward to releasing additional information and a resource hub later this year. We anticipate financial incentives will begin to be distributed in 2025.
 
The information contained here is not intended to provide legal advice or opinion and should not be acted upon without consulting an attorney. Counsel should not be selected based on advertising materials, and we recommend that you conduct further investigation when seeking legal representation.