Proposed CMS Rules Would Impose More Stringent Staffing Requirements on Long-term Care Facilities

The Centers for Medicare & Medicaid Services (“CMS”) proposed rules in September of 2023 which would establish federal staffing requirements for Medicare and Medicaid certified long-term care facilities.  The rules are part of the Biden Administration’s long-term care reform plans announced on February 28, 2022, which are intended to improve quality and safety in nursing homes and to “crackdown on bad actors.”  The proposed rules would require a minimum of:

• 0.55 registered nurse (“RN”) hours (33 minutes) per resident day (“HPRD”),
• 2.45 HPRD (two hours and 27 minutes) for nurse aides (“NA”) and
• a requirement to have an RN on site 24 hours per day, seven days per week.

Current federal rules allow staffing flexibility requiring “sufficient nursing staff with appropriate competencies and skills sets to provide nursing and related services to assure resident safety and attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident, as determined by resident assessments and individual plans of care considering the number, acuity and diagnoses of the facility’s resident population […]”  Additionally, an RN is required to be on site at least eight consecutive hours, seven days per week[1].

Thirty-eight states and the District of Columbia have minimum staffing standards with a high degree of variability.  For example, Ohio requires sufficient direct care staff on each shift to “meet the needs of residents in an appropriate and timely manner” with NAs, RNs and licensed practical nurses (“LPN”) providing a minimum of 2.5 hours of direct care and services per resident per day.  Additionally, an on-site director of nursing is required five days per week, eight hours per day, predominantly between 6:00 AM and 6:00 PM[2].  Similarly, Pennsylvania recently finalized new staffing rules that became effective on July 1, 2023.  The rules require:

• at least one NA per 12 residents during the day and evening, and
• one NA per 20 residents at night;
• one LPN per 25 residents during the day,
• one LPN per 30 residents during the evening, and
• one LPN per 40 residents overnight;
• at least one RN per 250 residents at all times (a facility with a census of 59 or fewer may substitute an LPN for an RN on the overnight shift only if an RN is on call and located within a 30-minute drive of the facility). 

Effective July 1, 2024, Pennsylvania will require:

• one NA per 10 residents during the day,
• one NA per 11 residents in the evening, and
• one NA per 15 residents overnight. 

The rules require an average of 2.87 hours (two hours and 52 minutes) of direct care to each resident per 24-hour period. Effective July 1, 2024, Pennsylvania will require 3.2 hours of direct care to be provided to each resident daily[3].

CMS states that its proposed staffing standards are higher than every state and lower only than the District of Columbia, based on September 2022 data.  The proposed staffing standards are essentially a floor and the rules continue to require that a facility “ensures there are adequate staff with the appropriate competencies and skills sets necessary to assure resident safety and to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident as determined by resident assessments, acuity and diagnoses of the facility’s resident population [….]”  The rules contain staggered implementation and standards for hardship exemptions.

CMS seeks comments on the proposed rules, specifically whether a total nurse staffing standard of 3.48 is appropriate.  Comments are due within sixty (60) days of the publication of the rule in the Federal Register, which was released on September 6, 2023[4].

If you have questions regarding the proposed rules, please do not hesitate to contact your Dinsmore attorney.