On September 1, 2023, the US Department of Health and Human Services (HHS), through the Centers for Medicare and Medicaid Services (CMS), issued a proposed rule to establish national minimum staffing standards for nursing homes in an effort to address ongoing safety and quality concerns for residents across the country.

The proposal would require nursing homes participating in Medicare and Medicaid to meet specific nurse staffing levels that promote safe and high-quality care for residents. The proposed rule consists of three staffing proposals: 1) Nursing homes would need to provide residents with a minimum of 0.55 hours of care from a registered nurse per resident per day, and 2.45 hours of care from a nurse aide per resident per day; 2) nursing homes would be required to ensure there is an RN 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; and 3) facilities will be required to complete robust facility assessments on staffing needs.

Exemption from the proposed minimum hours standards would be available in limited circumstances where all four of the following criteria are met: 1) the 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 System, is not a Special Focus Facility; has not been identified within the preceding 12 months as having widespread insufficient staffing with resultant resident actual harm or a pattern of insufficient staffing with resultant resident actual harm or have been cited at the immediate jeopardy level of severity with respect to insufficient staffing as determined by CMS.

CMS is proposing several updates to the facility assessment as a means of strengthening these requirements, including: clarifying that facilities must use evidence-based methods when care planning; requiring that facilities use the facility assessment to assess the specific needs of each resident and to adjust as necessary based on any significant changes in the resident population; requiring that facilities include the input of facility staff, including, but not limited to, nursing home leadership, management, direct care staff, representatives of direct care staff, and staff who provide other services; and requiring facilities to develop a staffing plan to maximize recruitment and retention of staff.

The proposal further requires State Medicaid agencies to collect and report on compensation for workers as a percentage of Medicaid payments for those working in nursing homes and intermediate care facilities.

CMS believes that national minimum nurse staffing standards, the adoption of a 24/7 RN, and enhanced facility assessment requirement are necessary to protect resident health and safety and ensure needs are met. CMS estimates this standard will require approximately 75% of nursing homes to strengthen staffing. To give facilities time to achieve compliance with the proposed minimum staffing requirements, CMS proposes that implementation of the final requirements will occur in three phases over a 3-year period for all non-rural facilities:

Phase 1 – comply with the facility assessment requirements 60 days after the publication date of the final rule;

Phase 2 – comply with the requirement for an RN onsite three years after the publication date of the final rule and

Phase 3 – comply with the minimum staffing requirement five years after the publication date of the final rule.

Kitch Attorneys & Counselors will be following up in the near future to provide additional advice on how to manage this change in the law. However, should you have any questions regarding these changes based on this proposed rule, please do not hesitate to contact a member of our Senior Living Practice Group.

Authored by: Laura DeMarco

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CMS Releases Proposed Minimum Staffing Standards

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