CMS Issues Long-Awaited Nursing Home Staffing Proposal

Just ahead of the Labor Day weekend, the Centers for Medicare and Medicaid Services (CMS) released the long-anticipated proposed regulations governing nursing home staffing levels. The rule will be published in the Sept. 6^th edition of the Federal Register with a 60-day comment period. If finalized as proposed, it would set minimum Registered Nurse (RN) and Aide staffing levels for nursing home providers and strengthen requirements for the current facility assessment process. Providers would have two years to meet an around-the-clock RN requirement and three years to come into compliance with RN and Aide minimum hours per resident day (HPRD) staffing levels. Providers in non-urban areas would be granted additional time. The proposed rule also includes requirements for states to increase Medicaid institutional payment transparency.

Key Provisions

CMS is proposing the following key provisions, which, according to the agency, are informed by literature reviews, extensive stakeholder comments, and empirical evidence from the CMS-commissioned Abt Associates staffing report:

A minimum RN staffing standard of 0.55 HPRD and a minimum staffing standard of 2.45 HPRD for Nurse Aides (NAs);
A requirement for an RN to be onsite 24 hours a day, seven days a week; and
Enhancements to facility assessment requirements pertaining to staffing needs.

Throughout the proposed rule, CMS reiterates the expectation that the HPRD levels that would be established would serve as a minimum floor and that facilities would staff above these minimum baseline levels to address the specific needs of their unique resident population based on the enhanced facility assessment and resident acuity levels.

If adopted as proposed, the specific enhancements to the current facility assessment requirements would:

clarify that facilities must use evidence-based methods when care planning, including consideration of those residents with behavioral health needs;
require the use of 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;
require that facilities include the input of facility staff, representatives of direct care staff, and staff who provide other services; and
require facilities to develop a staffing plan to maximize recruitment and retention of staff.

Effective Dates

The key requirements of 0.55 RN hours and 2.45 Aide hours would become effective three years after adoption of the final rule for homes in urban areas. Homes in rural areas would have five years to reach compliance. Compliance with the 24-hour RN requirement would be required in two years in urban areas and three years for homes in rural areas. All homes, regardless of geography, would need to comply with the new facility assessment requirements 60 days after the final rule is published.

For purposes of this rule, CMS is defining “rural” in accordance with the U.S. Census definition. “Rural” encompasses any area that is not included within an urban area. While the Census Urban and Rural webpage provides links to files listing urban areas within the state, members may find the website of the Rural Health Information Hub, which is funded by the Federal Office of Rural Health Policy, most helpful. The user is able to enter an address and verify whether it is considered to be in an urban area based on U.S. Census designations.

Comparison to State Requirements

Nursing homes in New York State would be expected to meet both the state and federal requirements. The proposed federal HPRD requirements do not align with New York State standards and differ in several material ways. Notably, the federal proposal does not include Licensed Practical Nurse (LPN) hours at all, with the only licensed nursing requirement being 0.55 hours of RN time (other than the proposal for 24-hour onsite RN). The New York requirement is for 1.1 hours of combined RN and LPN time. Statewide, RNs represent approximately one-third of licensed nursing hours, so a large number of homes do not meet 0.55 hours of RN time even as they meet the current state standard of combined RN/LPN hours. Note that the proposed federal requirement does include the hours of the Director of Nursing (DON) and RNs with administrative duties in the compliance calculation, while the state calculation does not.

On the Aide side, the current state requirement is 2.2 hours of Certified Nurse Aide (CNA) time. While Aide trainees were countable toward the state requirement in 2022, only CNA hours can be counted starting in 2023 forward. The federal proposal would require 2.45 hours of Aide time, although that calculation would include CNA as well as Aide trainee hours and, in those states that allow them, Medication Technician hours.

New York also requires an overall total of 3.5 hours of nursing care, while the federal rule does not propose an overall requirement. The state hours are not case-mix adjusted, and it appears that the federal calculation of the minimum staffing would not be case-mix adjusted either. However, CMS does reiterate that it expects facility staffing to reflect resident acuity and that the facility assessment would indicate how that would be done.

Enforcement and Flexibilities

The staffing provisions would be added to the Conditions of Participation, and it seems that CMS would monitor compliance primarily through the survey process. Enforcement actions would be taken against facilities that are not in compliance with these federal participation requirements. The remedies CMS could impose include, but are not limited to, the termination of the provider agreement, denial of payment for all Medicare and/or Medicaid individuals by CMS, and/or civil money penalties.

CMS proposes to allow for a hardship exemption for facilities that are able to demonstrate the following:

Workforce unavailability based on their location, as evidenced by either a medium (that is, 20 percent below the national average) or low (that is, 40 percent below the national average) provider-to-population ratio for the nursing workforce, or the facility is located at least 20 miles away from another long term care facility; and
Good faith efforts to hire and retain staff through the development and implementation of a recruitment and retention plan; and
A financial commitment to staffing by documenting the total annual amount spent on direct care staff.

Prior to being considered, the long term care facility must be surveyed to assess the health and safety of the residents. Facilities would not be eligible for an exemption if they have:

failed to submit their data to the Payroll-Based Journal (PBJ) system;
been identified as a Special Focus Facility (SFF); or
been identified within the preceding 12 months as having widespread insufficient staffing with resulting resident actual harm or a pattern of insufficient staffing with resident actual harm or having been cited at the immediate jeopardy level of severity with respect to insufficient staffing.

Medicaid Payment Transparency

The proposed regulations also seek to promote public transparency related to the percentage of Medicaid payments for services in nursing facilities (as well as intermediate care facilities for individuals with intellectual disabilities) that are spent on compensation to direct care workers and support staff. The proposals include:

Requiring states to report to CMS on the percentage of Medicaid payments for services in nursing facilities and intermediate care facilities for individuals with intellectual disabilities that are spent on compensation for direct care workers and support staff. These requirements would apply to both fee-for-service or managed care.
Making the institutional payment information reported by states to CMS available on public-facing websites.

Although implementation of the proposed requirements would not be immediate, based on PBJ data, 83 percent of homes in New York do not currently meet the proposed Aide requirement, while just under half do not meet the RN HPRD requirement. While CMS estimates a 10-year cost of $40.6 billion, CMS envisions no additional funding to help offset the costs associated with these proposals, other than modest investments in scholarship and tuition reimbursement programs.

A fact sheet outlining the proposed rule is available here, the press release is here, and the 2022 Nursing Home Staffing Study is here. The LeadingAge National press release reacting to the release is here. The full text of the rule along with instructions on submitting comments can be accessed here. Comments must be submitted no later than Nov. 6, 2023.

Once the comment period closes, CMS will review the comments and make changes it deems warranted before publishing the final rule. LeadingAge National will be providing resources to assist members in writing and submitting comments and is planning a member Town Hall discussion of the proposal on Thurs., Sept. 7^th; we will circulate information on how to participate in the event as soon as it is available. We urge members to submit comments and to share those along with other concerns and observations with us.

** Update since publication: Register for the Sept. 7^th LeadingAge National Staffing Mandate Town Hall at 2 p.m. here. Join LeadingAge National staff for a member-only discussion of the proposed rule, the Abt staffing study, and tools to help your organization decipher the proposed changes and what they will mean for your organization. The LeadingAge policy team will outline next steps, action items, and advocacy — and you'll also have the opportunity to ask questions and hear from other members. **

Contacts: Darius Kirstein, dkirstein@leadingageny.org, 518-867-8841 and Diane Darbyshire, ddarbyshire@leadingageny.org, 518-867-8828