In a proposed rule sent to the federal register public inspection list on Sept. 1, the Centers for Medicare and Medicaid Services (CMS) announced a long-awaited minimum staffing requirement for Long Term Care (LTC) facilities that participate in the Medicare and Medicaid programs.

The proposed rule, set for publication in the Federal Register on Sept. 6, would create a floor for staffing in Medicare and Medicaid participating LTC facilities for both registered nurses (RN) and nurse aides (NA). Additionally, CMS is also seeking input on need to add on a minimum total nurse staffing requirement with the rule.

The staffing levels that the rule proposes exceed the current minimum staffing requirements of nearly every state. In the rule, CMS indicated that its proposed staffing requirement is merely a floor that could be adjusted upward based on acuity of resident need and that it may revisit the levels in later rulemaking with an eye toward increasing the staffing requirement even further.

Standards differ based on type of staff involved

The proposed rule requires differing levels of staffing depending on the type of staff implicated. As a baseline, the proposed rule requires that every facility have an RN on-site at all times, 24 hours a day, seven days a week. Additionally, the rule requires that a facility have sufficient RNs on site to provide 0.55 RN hours per resident day (HPRD). That means that the facility, in addition to the RN 24/7 requirement, must have sufficient additional RNs on site such that the time that those RNs provide services in the facility equals 33 minutes per resident per day.

For nurse aides, there is no 24/7 requirement. However, the HPRD requirement is longer, clocking in at 2.45 NA HRPD. Put another way, under the proposed rule, the facility must have sufficient NAs on site such that the time that those NAs provide services in the facility equals 2 hours and 27 minutes per resident per day.

These staffing requirements are the floor of what is required regardless of case mix of residents. In its proposed rule, CMS indicates that if a facility has a case mix of residents that requires a higher level of acute care that the staffing requirements will also be greater.

Thirty-eight states and the District of Columbia already have minimum staffing levels. In its proposed rule, CMS acknowledged that its 0.55 RN HPRD requirement exceeds every state requirement except the District of Columbia. Meanwhile, the proposed 2.45 HPRD requirement for NAs would exceed that of all states including the District of Columbia.

CMS noted that the rule would result in approximately 78 percent of all LTC facilities being required to add staff. According to studies that CMS reviewed that would cost facilities between $2.2 billion and $6 billion per year.

In addition to the proposed minimum staffing requirements, CMS is investigating the possibility of adding a total nurse staffing level requirement along the lines of 3.48 HPRD for total nursing staff. That requirement would be inclusive of the RN and NA HPRD requirements as well as the 24/7 RN requirement.

Rule contains exceptions/staggered implementation

Because the proposed rule amends the Medicare and Medicaid participation requirements, it will be enforced through the standard method of survey and certification. However, for facilities that are having difficulty complying with the HPRD provisions of the rule, there is a limited exception built in. For a facility to qualify, it must meet all four of the criteria:

(1) where workforce is unavailable, or the facility is at least 20 miles from another long-term care facility, as determined by CMS;

(2) the facility is making a good faith effort to hire and retain staff;

(3) the facility provides documentation of its financial commitment to staffing; and

(4) the facility has not failed to submit Payroll Based Journal data in accordance with re-designated 483.70(p), is not a Special Focus Facility (SFF); has not 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; and has not been cited at the “immediate jeopardy” level of severity with respect to insufficient staffing within the 12 months preceding the survey during which the facility’s non-compliance is identified.

Note that this is exception is for the HPRD provisions only and does not apply to the 24/7 RN requirement.

The rule also provides for a staggered implementation process. Compliance with the RN 24/7 requirement for all non-rural facilities would be by 2 years after the final rule is published. For rural facilities, compliance would be required by 3 years after final publication. Meanwhile, the HPRD requirement would be phased in similarly, with non-rural facilities coming into compliance by 3 years after final publication and rural facilities coming into compliance by 5 years after final publication.

The comment period for the proposed rule closes on November 6, 2023 and CMS will consider those comment and publish the final rule sometime thereafter.

Reed Smith will continue to follow developments involving this rule. If you have any questions or would like to comment on the rule, please reach out to the health care lawyers at Reed Smith.