CMS Publishes Final Rule for Minimum Staffing Standards in Skilled Nursing Facilities

As part of the Biden administration’s initiative to ensure safe and quality care in long-term care facilities, on May 10, 2024, the Centers for Medicare & Medicaid Services (“CMS”) published a final rule implementing minimum staffing standards in federally funded nursing homes. The final rule requires nursing homes to do the following:

1. Maintain enough nursing staff to provide each resident with at least 3.48 hours of care per resident per day (“Total Minimum Staffing Standard”), with at least .55 hours of care per resident per day from registered nurses (“RNs”) and at least 2.45 hours of care per resident per day from nurse aides (“NAs”) (“Individual Minimum Staffing Standards”);

2. Maintain an RN on-site 24 hours per day, seven days a week (“24/7 RN Requirement”); and

3. Develop and implement enhanced facility assessments, which includes using evidence-based, data-driven methods to assess the details of resident populations and requiring active input from nursing home leadership and direct care staff (“Enhanced Facility Assessments Requirement”).

Implementation Timeline / Compliance Deadlines

The final rule sets forth a staggered timeline for compliance: Beginning the date of publication of the final rule, nursing homes will have 90 days to comply with the Enhanced Facility Assessments Requirement, two years to comply with the 24/7 RN Requirement and Total Minimum Staffing Standard, and three years to comply with the Individual Minimum Staffing Standards (or longer, for “rural” facilities, as defined by the Office of Management and Budget).

CMS will enforce the above requirements as part of its existing survey, certification and enforcement process for long-term care facilities. Nursing homes that are not in substantial compliance with the requirements as of the relevant compliance deadlines will be subject to CMS’s standard enforcement remedies, including the imposition of civil money penalties, directed plans of correction, denials of payment for new admissions, and/or termination of provider agreements.

Facility Exemptions and Waivers

Under the final rule, nursing homes may be eligible for a temporary exemption from the Total Minimum Staffing Standard, Individual Minimum Staffing Standards, and 24/7 RN Requirement (but not the Enhanced Facility Assessments Requirement). To be considered for a waiver, a facility must demonstrate the following:

1. Workforce unavailability based on having a nursing workforce per labor category that is a minimum of 20% below the national average for the applicable nurse staffing type;

2. Good faith efforts to hire and retain staff through the development and implementation of a recruitment and retention plan;

3. A financial commitment to staffing, supported by documentation of their total financial resources spent to employ direct care staff relative to their revenue;

4. Evidence the facility has posted notice of its exemption status in a prominent and publicly viewable location in each resident facility; and

5. Evidence the facility provides notice to prospective and current residents of its exemption status and the degree to which it is not in compliance with the Total Minimum Staffing Standard and Individual Minimum Staffing Standards, and that copies of such notices are sent to a representative of the Office of the State Long-Term Care Ombudsman.

Some federally funded nursing homes are excluded from waiver consideration under the final rule. Facilities will not be eligible for exemption if:

1. They have failed to submit data to the Payroll-Based Journal System,

2. They are a special focus facility,

3. They have 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, or

4. Within the past 12 months, they have been cited at the “immediate jeopardy” level of severity with respect to insufficient staffing.

Changes from the Proposed vs. Final Rule

Prior to releasing the final rule, CMS reviewed over 46,000 comments received after the proposed rule was published on September 6, 2023. These comments were submitted by a variety of industry stakeholders, including long-term care consumers, advocacy groups, senior services providers, long-term care ombudsmen, state survey agencies, various healthcare associations, legal organizations, labor unions, residents, families, healthcare professionals, and administrative staff. In response to the comments received, CMS revised certain parts of the proposed rule prior to finalizing. These key differences are summarized in the table at the end of this article.

Legal Challenges to the Final Rule Becoming Effective

Three of the most common concerns raised by industry stakeholders in response to the proposed rule were (1) the high costs of compliance to be borne by nursing homes, (2) the discounting of direct care provided by LVNs, LPNs, and other caregivers, and (3) the failure to adequately address the rural/non-rural nursing home divide. In the final rule, CMS addresses, but does not resolve, these concerns. CMS estimates the final rule will cost facilities $43 billion over 10 years ($4.3B per year). Provider trade associations have published analysis estimating the cost at over $6 billion per year. Regarding the high costs of compliance, CMS stated it would invest over $75 million in a national nursing home staffing campaign; however, CMS has not explained how, when, or where these funds would be invested (and there has been no mention of increasing Medicare or Medicaid rates to offset costs of compliance). Regarding direct care provided by LVNs, LPNs, and other caregivers, CMS explained that “LPN/LVN staffing levels do not appear to have a consistent association with safety and quality of care, unlike RN and NA staffing levels.” CMS therefore did not modify the proposed rule to allow direct care provided by LPNs and LVNs to count toward the Individual Minimum Staffing Standards. LPN/LVN care does count toward the total 3.48 HPRD requirement, however. Lastly, regarding the rural/non-rural nursing home divide, CMS’s only response was to highlight the availability of expanded hardship exemptions for qualifying nursing homes.

Given the potential cost and impact that the final rule will have on federally funded nursing homes, there have been efforts by facilities and industry groups to prevent the rule from becoming effective. There are a several pathways through which the final rule could be challenged, including:

1. Three bills have been introduced in Congress seeking to prohibit the Secretary of Health and Human Services from finalizing a proposed rule regarding minimum staffing for nursing facilities, and to establish an advisory panel on the nursing home workforce:
   1. The Protecting Rural Seniors’ Access to Care Act (H.R. 5796) was introduced in the House of Representatives by Rep. Michelle Fischbach (R-MN-7) on September 28, 2023. The bill seeks to prohibit the Secretary of Health and Human Services from finalizing a proposed rule regarding minimum staffing for nursing facilities, and to establish an advisory panel on the nursing home workforce. As of September 29, 2023, the bill has been referred to the House Subcommittee on Health.
   2. A counterpart to H.R. 5796, the Protecting Rural Seniors’ Access to Care Act (S.3410) was introduced in the Senate by Sen. Deb Fischer (R-NE) on December 5, 2023. The bill seeks to prohibit the Secretary of Health and Human Services from finalizing a proposed rule regarding minimum staffing for nursing facilities, and to establish an advisory panel on the nursing home workforce. As of December 5, 2023, the bill has been read twice and referred to the Senate Committee on Finance.
   3. The Protecting America’s Senior’s Access to Care Act (H.R. 7513) was introduced in the House of Representatives by Rep. Michelle Fischbach (R-MN-7) on March 1, 2024. The bill seeks to prohibit the Secretary of Health and Human Services from finalizing a proposed rule regarding minimum staffing for nursing facilities, and to establish an advisory panel on the skilled nursing facility workforce. As of March 6, 2024, the bill has been considered and marked-up by the House Committee on Ways and Means.

If enacted by Congress, each of the bills above would prohibit the final rule from being formally enacted, thus preventing CMS from enforcing the minimum staffing requirements within the final rule.

2. The VA Report on Proposed CMS Staffing Ratios Act (S. 3841) was introduced in the Senate by Sen. Angus King, Jr. (I-ME) on February 29, 2024. The bill seeks to require the Secretary of Veterans Affairs to submit a report on the impact of a proposed rule submitted by the Centers for Medicare & Medicaid Services on veteran access to long-term care facilities. As of February 29, 2024, the bill has been read twice and referred to the Senate Committee on Veterans’ Affairs.

3. There could be a groundswell of bipartisan federal and/or state’s rights support, similar to what was seen in response to the proposed rule.

4. With a federal election six months away, a new Congress could pass legislation, or a new administration could issue an executive order, to neutralize the final rule.

5. While a legal challenge to the final rule has not yet been filed, it is widely anticipated that industry groups will file legal action challenging the rule. When the proposed rule was published in September 2023, the American Health Care Association (AHCA) publicly stated that legal action would be a possible option.

Despite these contingencies, federally funded nursing homes have a long road ahead of them. By CMS’s own calculations, 79% of facilities are currently not in compliance with the requirements of the final rule. Industry groups have estimated that percentage to be closer to 95% of all facilities. To encourage a smooth transition, CMS has promised it will publish interpretive guidance and revised survey procedures in advance of each compliance deadline. But given the staggered nature of the compliance deadlines, obtaining a complete picture of the final rule, and the totality of the impact on federally funded nursing homes, will take years.

Proposed vs. Final Rule