By Abbey Mansfield Ruby and Taylor P. Monnig
The Centers for Medicare & Medicaid Services (CMS) published a proposed rule on September 1, 2023, that, if finalized, would impose minimum staffing standards for long-term care facilities participating in Medicare or Medicaid. Under the proposed rule, long-term care facilities would be required to provide a minimum of three hours of direct care per patient day, including a minimum of 0.55 hours of care by a registered nurse and 2.45 hours of care by a nurse aide. Implementation of these individual minimum nurse staffing standards would be required within three years for nonrural facilities and five years for rural facilities.
Facilities would also be required to staff a registered nurse on site 24 hours a day, seven days a week – an increase from the existing staffing regulations that require a registered nurse to be on site eight consecutive hours each day. Implementation of the registered nurse staffing standard would be required within two years for nonrural facilities and three years for rural facilities.
Impact on Long-Term Care Providers
The proposed rule was introduced as part of the Biden-Harris Administration's Nursing Home Reform initiative and is the first of its kind. CMS estimates that approximately 75 percent of long-term care facilities will be required to add staffing to comply with the proposed standards.
If finalized, facilities that fail to comply with the mandates would be subject to enforcement actions, with remedies that could include termination of Medicare or Medicaid provider agreements, denial of Medicare or Medicaid payments, and civil monetary penalties.
In response to feedback from providers and others, the proposal includes a hardship exemption from the minimum hours per resident day requirements. To receive the exemption, a facility must meet specific criteria, including location, good faith efforts to hire and demonstrated financial commitment, among other requirements. The exemption is for one year, unless the location becomes a Special Focus Facility or is cited for widespread insufficient staffing with resultant resident harm. Under the current proposal, an exemption may be extended on a yearly basis.
According to federal labor statistics, nursing homes lost more than 200,000 workers from February 2020 to December 2022, and industry observers view skilled nursing facilities as the only sector of the healthcare industry that has not yet recovered from staffing losses associated with the COVID-19 public health emergency. A recent study conducted by the American Health Care Association estimated that a federal staffing mandate based on a 4.1-hour standard (the level recommended in a 2001 CMS study) would cost $11.3 billion to $11.7 billion annually and require more than 187,000 new workers to service the industry. The CMS proposal does not include any direct funding to facilities or increased reimbursement rates to cover recruiting, training or payroll costs.
Public Comment Period
CMS has solicited public comment for the 60-day period following publication of the proposed rule generally and, in particular, on various specific provisions, including consideration of a more demanding 3.48 hours standard. Comments may be submitted electronically or by mail. CMS will consider all comments received during the comment period and issue a final rule thereafter.
Abbey Mansfield Ruby is a partner and Taylor P. Monnig is an associate in Holland & Knight's Nashville, Tennessee, office.
