Summary
A final federal rule raising minimum staffing requirements for long-term care (LTC) facilities that receive Medicare or Medicaid funding becomes effective June 21, starting a staggered timeline for LTCs to create and implement plans to meet requirements for staff hours per resident and registered nurse and nurse aide staffing.
The Upshot
- Under the new regulation, LTC facilities must provide registered nurse coverage onsite 24/7. This is a change from the previous requirement, which required only eight hours of consecutive registered nurse coverage per day, and additional coverage “sufficient” to meet resident needs.
- For each resident, LTC facilities will have to provide a total of 3.48 nurse staffing hours per resident day, of which 0.55 hours per day must be from direct registered nurse care, and 2.45 hours per day must be direct nurse aide care. This is an increase from the existing standard, which required only “sufficient” staffing to meet resident needs in accordance with resident care plans.
- The Centers for Medicare & Medicaid Services (CMS) posted the final rule for inspection on April 22, 2024. The final rule will be effective June 21, 2024, when the start of a staggered implementation timeline will begin.
The Bottom Line
CMS estimates its final rule will require 78 percent of LTC facilities nationwide to increase their staffing levels for registered nurses and nurse aides, unless they are eligible for an exception. Facilities will need to identify an action plan to comply with the new rules, and to digest its financial implications, as soon as possible.
The Centers for Medicare & Medicaid Services (CMS) posted for inspection a final rule that raises minimum staffing level requirements for all long-term care facilities reimbursed by Medicare or Medicaid (LTC facilities), effective June 21, 2024. The rule was posted for inspection on April 22, 2024.
The final rule is largely unchanged from the proposed rule, which CMS published on September 6, 2023, requiring specific hours per resident, day requirements for registered nurses and nurse aides, and registered nurse staffing requirements for LTC facilities.
The implementation timeline will proceed in three phases. In phase one, which begins 90 days from the publication of the final rule (expected to be May 10, 2024), LTC facilities must develop a staffing plan to maximize recruitment and retention of staff, and meet other requirements related to their facility-wide assessments, such as incorporating evidence-based methods when planning for residents’ care, and using the facility assessment to assess the specific needs of each resident in the LTC facility.
In phase two, which goes into effect in May 2026 for urban facilities and May 2027 for rural facilities, LTC facilities will be required to provide registered nurse coverage onsite 24/7, and provide a total of 3.48 nurse staffing hours per resident day. This is an increase from the existing standard, which required only “sufficient” staffing to meet resident needs in accordance with resident care plans.
Phase three goes into effect May 2027 for urban facilities and May of 2028 for rural facilities, and marks the full implementation of the rule. LTC facilities will be required to provide registered nurse coverage onsite 24/7, and a total of 3.48 nurse staffing hours per resident day, made up of 0.55 hours of direct registered nurse care per day and 2.45 hours of direct nurse aide care. By comparison, the current regulatory regime only requires registered nurse coverage of at least eight consecutive hours a day, seven days a week, and that the LTC facility provide “sufficient numbers” of nursing staff to meet resident needs.
The final rule does include a pathway for LTC facilities to qualify for a temporary hardship exemption from the finalized staffing requirements. To qualify for the exemption, the LTC facility must:
- be located in an area where the supply of registered nurses, nurse aides, or total nurse staff is not sufficient to meet the area’s needs as evidenced by the applicable provider-to-population ratio for nursing workforce, to be calculated at the time of the exemption application by CMS based on U.S. Bureau of Labor Statistics and Census data;
- provide documentation of a good faith effort to hire and maintain nursing staff; and
- provide documentation of the LTC facility’s financial commitment to staffing, including the facility’s spending on nurse staffing relative to facility revenue.
Any LTC facility seeking an exemption must also be surveyed for compliance with LTC participation requirements, and meet certain other notice requirements. The exemption, if granted, would last until the LTC facility’s next standard recertification survey.
LTC facilities should develop an action plan to prepare for the implementation of these new requirements. CMS estimates that less than 22 percent of LTC facilities currently meet the staffing requirements contained in the new rule. The U.S. Bureau of Labor Statistics had already predicted in 2023 there would be approximately 193,000 openings for registered nurses each year starting in 2022, suggesting a nationwide shortage of nursing staff. Thus, although CMS indicated it believes higher staffing levels will increase resident safety and quality of care, there may not be enough nurses available to fill the increased open positions this final rule is expected to create. CMS noted in the final rulemaking it is committing more than $75 million to launch an initiative to increase the LTC workforce, but no further details have been provided.
Ballard Spahr’s Health Care Practice Group attorneys are available to assist with any questions related to staffing requirements and applicable exceptions.
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