Section Review

From left: Yelena Greenberg and Ivy Miller

On Sept. 6, 2023, the Centers for Medicare and Medicaid Services (CMS) in the Department of Health and Human Services (HHS) published a Proposed Rule that addresses the Biden-Harris Administration’s goals for improving nursing home care and staffing.¹ The Proposed Rule (1) sets forth minimum standards for staffing long-term care (LTC) facilities, and (2) adds a new requirement that state Medicaid agencies report the percentage of payments for certain Medicaid-covered services that are spent on direct care worker and support staff compensation. The Proposed Rule was issued in response to President Joe Biden’s April 18, 2023, Executive Order on Increasing Access to High-Quality Care and Supporting Caregivers, which directed HHS to address the quality of care and safety issues resulting from staff burnout, turnover and chronic understaffing in LTC facilities, as evidenced by numerous research studies and lessons learned from the COVID-19 public health emergency (PHE).² 

Overview of the Proposed Rule

New Staffing Standards for LTC Facilities

• 24/7 RN Standard. An amendment to 42 C.F.R. 483.35(b) to require a registered nurse (RN) “to be on site 24 hours per day and 7 days per week to provide skilled nursing care to all residents in accordance with resident care plans.”³ This requirement is a significant change from current federal regulations, which only require licensed nurses and other nursing personnel to be available 24 hours per day, with RN services required for only eight consecutive hours per day.⁴ 

• Minimum RN/NA HPRD Standard. A clarification to 42 C.F.R. 483.35(a)(1)(i) and (ii) regarding RNs and nursing assistants (NAs) “to specify that facilities must provide, at a minimum, 0.55 RN hours per resident day (HPRD)⁵ and 2.45 NA HPRD.” HPRD is defined as “the total number of hours worked by each type of staff divided by the total number of residents as calculated by the CMS.”⁶ While these ratios are the floor, if a facility’s case-mix requires a higher level of care than this standard, a higher staffing ratio will be enforced as the standard for that facility.⁷ 

CMS explains in the Proposed Rule that it specifically targets RNs and NAs as research demonstrates that RNs and NAs have a larger effect on quality than other licensed nurses (licensed practical nurses (LPN)/licensed vocational nurses (LVN)), and specifically, that “where standards provide flexibility as between types of licensed nurses (that is, do not specify RN hours), LPN/LVNs may find themselves practicing outside of their scope of practice partly because there are not enough RNs providing direct patient care and supervision of LPN/LVNs.”⁸ 

This proposed change differs from current regulations, which only require that “sufficient numbers” of nursing staff be on-site “to provide nursing care to all residents in accordance with resident care plans,” by specifying explicitly what ratio of staff constitutes “sufficient numbers.”⁹ 

The Proposed Rule offers an exemption from this standard if an LTC facility meets all of the following criteria:¹⁰

1. The workforce is unavailable. To qualify, the facility must be in an area where the supply of RNs and/or NAs is insufficient to meet the area needs based on a medium or low provider-population ratio for a nursing workforce, as calculated by CMS, or the facility must be at least 20 miles from another LTC facility, as determined by CMS;
   
   
2. The facility demonstrates and documents making good-faith efforts to hire and retain staff. To qualify, a facility must be surveyed and cited for noncompliance with the RN/NA standards, must develop and implement a recruitment and retention plan, and must thoroughly document an inability to recruit and retain appropriate nursing staff, despite offering prevailing wages; 
   
   
3. The facility provides documentation of its financial commitment to staffing. To qualify, a facility must document financial resources spent annually on nurse staffing compared to revenue following a survey and citation for noncompliance with the RN/NA standards; and 
   
   
4. The facility is not under scrutiny or monitoring, or otherwise meets certain exclusionary criteria, including for insufficient staffing with resultant resident harm or immediate jeopardy.

Importantly, this exemption applies only to the minimum RN and/or NA HPRD standard, and though there may be overlap with the 24/7 RN rule to the extent a 24/7 RN could help satisfy the minimum RN and/or NA HPRD standard, “meeting the 24/7 [RN] requirement does not also count as meeting the 0.55 RN HPRD and 2.45 NA HPRD and vice versa.”¹¹ Also, despite these exemptions, each LTC facility is still obligated to “comply with its statutory and regulatory obligations to have sufficient staff to assure resident safety, and to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident.”¹²

• Facility Assessment Standard. A revision to 42 C.F.R. 483.70(e) to mandate that the existing annual facility-wide assessment to determine what resources are necessary to care for the LTC facility’s residents continues to be used to determine staffing decisions.¹³ CMS notes that this requirement would focus on individual facilities’ needs and resources, rather than relying solely on universal minimum staffing standards.¹⁴ CMS stresses that this revision serves to preempt facilities that might use the new minimum staffing standards to decrease their existing staffing levels down to the minimum, thereby potentially decreasing quality of care for their residents.¹⁵

Compliance Timelines. The Proposed Rule would require compliance with these three standards on different dates to provide adequate time for LTC providers to come into compliance. For all facilities, the facility assessment requirement would take effect 60 days after the Final Rule is published.¹⁶ For urban facilities, the 24/7 RN staffing requirement would take effect two years after the Final Rule is published, and the RN/NA minimum HPRD requirement would take effect three years after the Final Rule is published.¹⁷ For rural facilities, these effective dates stretch to three years and five years, respectively, following publication of the Final Rule.¹⁸

Enforcement. CMS notes that the two staffing standards work in conjunction to improve patient care quality and safety, and ultimately improve outcomes.¹⁹ However, these standards will be enforced independently, meaning that compliance with one does not indicate compliance with the other. Failure to comply with either or both standards may result in “the termination of the provider agreement, denial of payment for all Medicare and/or Medicaid individuals by CMS, and/or civil money penalties.”²⁰ 

Public Comments. CMS sought input on multiple aspects of these proposed standards, including: 

• whether to adopt a total nurse staffing minimum standard of 3.48 HPRD across all nursing specialties, either in addition to or in place of the proposed RN/NA HPRD standard;²¹

• whether to allow substitution (e.g., counting LPN/LVN HPRD in place of NA HPRD) under limited circumstances;²² 

•  the feasibility of implementing the proposed staffing standards, unintended consequences, and potential alternatives to the proposed standards;²³ 

•  the time frame of compliance for each of these new standards, as well as ways to mitigate the potential increase in administrative burden that the proposals may cause;²⁴ and

• whether the hardship exemptions outlined in the Proposed Rule provide realistic and meaningful relief for facilities that may need access to them.²⁵ 

CMS accepted public comments on the Proposed Rule following its publication until Nov. 6, 2023; CMS has received over 46,000 comments within such time.²⁶ 

Added Staff Compensation Reporting

In addition to the minimum staffing requirements, in an effort to promote transparency to the public, the Proposed Rule would also add certain reporting requirements by state Medicaid agencies. This reporting is also aimed at helping CMS understand how compensation for direct care workers and support staff is linked to quality of institutional services received by patients in such facilities. Specifically, the Proposed Rule would amend 42 C.F.R. 442.43 to require state Medicaid agencies to report the percentage of Medicaid payments for services at LTC facilities and intermediate care facilities for individuals with intellectual disabilities that are allocated toward compensation for direct care workers and support staff.²⁷ 

Implications for Compliance

Compliance with the proposed federal nurse staffing thresholds would vary based on the type of facility. CMS confirms in the Proposed Rule that certain LTC facilities, which typically have current staffing below the proposed levels, would need to staff up, including: for-profit facilities (compared to government and nonprofit facilities); larger facilities; free-standing LTC facilities (relative to hospital-based); facilities that are part of a continuing care retirement community; facilities with higher shares of Medicaid residents; facilities that are special focus facilities. (SFF) or SFF candidates; and rural facilities.²⁸ According to KFF estimates, only 19% of LTC facilities would currently meet the proposed staffing standards, and the remaining facilities would need to hire additional nursing staff.²⁹ KFF further estimates that 60% of nonprofit and government LTC facilities and 90% of for-profit LTC facilities would need to increase staffing in order to meet the proposed federal nurse staffing thresholds.³⁰ 

News reports have documented a number of concerns and challenges from nursing homes regarding compliance. Understaffing is already an issue in nursing homes nationwide, exacerbated by LTC facility workers leaving the field in the wake of the COVID-19 pandemic.³¹ Rural nursing homes in particular are already struggling with chronic understaffing, with hundreds already forced to close in recent years.³² While rural nursing homes would be granted a five-year timeline for compliance, as well as the potential to receive a hardship exemption upon satisfaction of all of the exemption criteria, these accommodations may not be enough to stave off more closures, as an estimated 1,358 rural nursing homes would need additional nurses to be in compliance with the new minimum standards.³³ 

Another point of concern is the accessibility of training for aspiring nurses who may be able to fill positions in nursing homes. CMS and other federal agencies have awarded or pledged roughly $175 million to train more nurses; however, opponents say that more money is needed to train the additional estimated 22,000 nurses needed to alleviate the shortage,³⁴ and that “training takes time” with respect to the proposed two-year implementation period.³⁵ 

Key advocacy organizations on each side of the issue have voiced discontent with the Proposed Rule — either that the Proposed Rule goes too far, with dire implications to facility capacity and viability, or that the Proposed Rule does not go far enough, with dire implications to patient safety and nurse retention.³⁶ The American Hospital Association argues that a “one-size-fits-all” numerical staffing threshold would undermine clinical judgment in staffing and create access issues,³⁷ and that the Proposed Rule “will not resolve structural health care workforce shortages that have been building for more than a decade.”³⁸ Conversely, the National Consumer Voice for Quality Long-Term Care argues that a minimum staffing threshold is necessary, but that the Proposed Rule’s thresholds are not high enough to protect LTC facility residents and support direct care staff, that the exemptions should be further limited, and that the time frame for implementation should be reduced.³⁹ 

CMS further acknowledges in the Proposed Rule that the new staffing standards may result in inappropriate gaming of the requirements, which could undermine the goals of improved quality and safety, such as: “choosing to staff only at the minimum RN and NA HPRD requirements, without adequate consideration of facility characteristics and resident acuity and needs; healthcare workforce substitution (hiring for one position by eliminating another); task diversion (assigning non-standard tasks to a position); or gamesmanship around composition of the patient population (avoiding residents with more complex medical needs).”⁴⁰ Such operational workarounds and reporting irregularities may challenge CMS’ ability to enforce the Proposed Rule. 

State compliance implications 

CMS acknowledges in the Proposed Rule that there is considerable variation in state staffing requirements in the 38 states and D.C. that currently have minimum staffing standards in LTC facilities.⁴¹ CMS proposed 0.55 and 2.45 HPRD for RNs and NAs, respectively, in order to establish standards that are higher than almost every state and meet the statutory goals of improving health and safety.⁴² We evaluate the implications of the Proposed Rule to Massachusetts and Connecticut in light of each state’s respective nurse staffing requirements, as modified during the COVID-19 PHE. 

Massachusetts

Massachusetts revised its nurse staffing standards in 2021, during the COVID-19 PHE, providing CMS with the most recent data to assess the impacts of nurse staffing thresholds in proposing the federal minimum staffing standards.⁴³ 

24/7 RN Standard: While Massachusetts does currently have a 24/7 standard in place for most LTC facilities, the standard allows for LPNs or RNs to fulfill those hours.⁴⁴ The new proposed standard, which requires RNs to fulfill this obligation, would likely mean a significant staffing change for some facilities. To combat workforce insufficiencies, Massachusetts has set aside $18 million in its 2024 budget to cover tuition for 100% of community college nursing students — a move that may allow Massachusetts to more readily meet the increased demand for RNs.⁴⁵ A proposed bill, if passed, would establish a fund to be administered by the Massachusetts Executive Office of Health and Human Services, including grants for workforce training programs for new CNAs, to advance the skill sets of entry-level LTC facility workers, and to provide supervisory and leadership training.⁴⁶ 

Minimum RN/NA HPRD Standard: Massachusetts has minimum HPRD standards already in place that are similar to those in the Proposed Rule. All LTC facilities (except resident care facilities) must currently meet a combined minimum of 3.58 HPRD for all nursing personnel (including NAs), which includes a minimum of 0.508 RN HPRD⁴⁷ — slightly lower than the new proposed minimum of 0.55 RN HPRD.

Connecticut

24/7 RN Standard: Connecticut already has a 24/7 RN standard in place,⁴⁸ easing the burden for compliance with the proposed rule significantly.

Minimum RN/NA HPRD Standard: In 2021, Connecticut added minimum staffing standards, effective Jan. 1, 2022, requiring LTC facilities to provide a combined 3.0 nursing staff HPRD.⁴⁹ In 2023, a bill was filed in the Connecticut Senate that would have (1) incrementally increased the minimum total nursing staff HPRD (including RN, LPN and NA hours) to 4.1 by 2026, and (2) delineated minimum HPRD standards for each nursing specialty (RN, LPN and NA hours) separately.⁵⁰ This bill would have put Connecticut RN and NA NPRD minimums in line with the Proposed Rule. While the bill did not pass, there appears to at least be some interest on the part of Connecticut legislators to further address staffing levels in nursing homes.