Legal Alerts

CMS Publishes Final Rule Setting Minimum Staffing Requirements for Long-Term Care Facilities

Dallas, Tex. (June 10, 2024) - On May 10, 2024, the Department of Health and Human Services for the Center for Medicare & Medicaid Services published its final rule establishing minimum staffing standards for Long-Term Care (LTC) facilities. The final rule is part of the Biden administration’s focus on nursing home reform. In this alert, we break down the key provisions of the rule.

Summary of Key Provisions

In sum, the final rule requires LTCs to do the following, unless subject to an exception: (1) implement new facility assessment provisions; (2) have a RN onsite 24 hours a day, seven days a week and available to provide direct resident care; and (3) have an overall minimum standard of 3.48 total nurse staffing hours per resident day of nursing care, with 0.55 RN hours per resident day and 2.45 nurse aide hours per resident day.

Staffing Standard

The final rule now requires an RN to be on site 24 hours per day, seven days per week. 

Additionally, the final rule provides that LTC facilities must provide, at a minimum, 3.48 total nurse staffing hours per resident day of nursing care, with 0.55 RN hours per resident day and 2.45 nurse aide hours per resident day. The remaining 0.48 hours can be provided by any combination of RNs, nurse aides, Licensed Practical Nurses (LPNs), or Licensed Vocational Nurses (LVNs).

CMS defines “hours per resident day” as the total number of hours worked by each type of staff divided by the total number of residents as calculated by CMS. The 3.48 minimum total nurse staffing requirement must be met regardless of the individual facility’s resident case-mix. If the acuity needs of facility residents require a higher level of care, a higher total of RNs and nurse aides will be required by the facility.

The new 24/7 RN requirement also mandates that the RN be able to provide direct resident care. To qualify, the onsite RN can be the facility’s DON as long as that person can provide direct resident care.

Exemptions from the Staffing Standard

The additional hours of RN staffing time added by the rule can be waived through the current statutory waiver process or by a new hardship exemption provision. The new hardship exemption allows any facility to apply for up to eight hours a day of relief from the 24/7 requirement. However, during any periods when the onsite RN requirements are exempted, facilities must have a registered nurse, nurse practitioner, physician assistant, or physician available to respond immediately to telephone calls from the facility. 

Exemptions from the minimum standards are available only in limited circumstances. To qualify for an exemption, certain criteria must be met. Facilities must establish that: (1) the workforce is unavailable; (2) the facility is making a good faith effort to hire and retain staff; (3) the facility has documented a financial commitment to staffing; (4) the facility published notice of exemption status in its facility; and (5) the facility provides notice of its exemption status to current and prospective residents and ombudsman. The new rule withdraws the 20 mile distance qualifier for an exemption from the minimum hours per resident day requirement.

A facility can also be excluded from eligibility for an exemption if, among other things, it has been cited for widespread or a pattern of insufficient staffing with resultant resident actual harm. 

Implementation Timeframe

The regulations are effective June 21, 2024. However, the implementation dates for certain regulations under the rule differ. The facility assessment provisions will be implemented by August 8, 2024. The 24/7 RN requirements must be implemented by May 10, 2026 for non-rural facilities. For rural facilities, those requirements must be implemented by May 10, 2027. The requirements regarding the 3.48 hours per resident day total nurse staffing standard have an implementation date of May 10, 2027 for non-rural facilities and May 10, 2028 for rural facilities.

Enforcement Actions/Remedies for Non-Compliance

Enforcement actions, or remedies, may be taken against facilities that are not in substantial compliance with the new requirements. The remedies imposed include, but are not limited to, termination of the provider agreement, denial of payment for new admissions, and/or civil monetary penalties. CMS will provide additional detail and guidance on how compliance will be assessed as the implementation dates approach.

Regardless, CMS has indicated that each of the minimum staffing requirements is evaluated separately. CMS does not consider compliance with the 24/7 RN requirement as constituting compliance with the minimum 3.48 hours per resident day total nurse staffing standard, the 0.55 RN hours per resident day, or the 2.45 nurse aide hours per resident day requirements, or vice versa. CMS further indicated that the rule requirements are the floor, and the expectation is that LTCs will exceed the minimum levels as determined by the acuity of resident needs. 

CMS has also indicated that it will closely monitor and evaluate a number of provisions of the rule, including the exemption process and the definition of rural as they are implemented to determine whether any updates and changes are necessary over the coming years. 

Preemption or Conflict with State Standards

The final rule will only preempt state standards or laws where the state law requires a minimum staffing floor below the level set by the final rule. CMS has not identified any state law setting a maximum staffing level, but noted that if a state were to pass a law setting a maximum staffing level below the standards in the final rule, the final rule would preempt that state law. CMS denies any preemption where a state law sets a higher minimum staffing level than the final rule.

Plan for Compliance

As noted above, the implementation dates for these provisions are somewhat delayed. However, at present, it is unclear what the review and approval process for waiver and exemption applications will look like or whether certain facilities will even qualify for available waivers. Therefore, facilities should not wait to start the compliance process, including evaluating whether they are eligible for waivers.

To that end, for more information about this rule or assistance with compliance questions or concerns, please contact the authors or editor of this alert. Visit Lewis Brisbois' Healthcare and Long-Term Care Practice pages to learn more about our capabilities in this area. 

Author:

Amber R. Pickett, Partner

Author/Editor:

Nichol Bunn, Managing Partner - Dallas

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