On September 1, 2023, the Centers for Medicare & Medicaid Services (“CMS”) released a proposed rule (“Proposed Rule”) that calls for minimum staffing standards in long-term care facilities (“nursing homes”). If finalized, the changes in the Proposed Rule would be used to survey nursing homes for compliance and enforced as part of CMS’s existing survey, certification and enforcement process. The Proposed Rule was published online on September 6, 2023.
The Key Elements of the Proposed Rule Are:
Staffing Standards
The Proposed Rule calls for nursing homes participating in Medicare and Medicaid to meet specific nurse staffing levels that CMS believes promote safe, high-quality care for residents. Nursing homes would need to provide residents with a minimum of 0.55 hours of care from a registered nurse (“RN”) per resident per day (“HPRD”), and 2.45 hours of care from a nurse aide (“NA”) per resident per day. CMS estimates approximately 75% of nursing homes will need to increase their staffing.
Exemptions
The Proposed Rule provided for an exemption from the proposed minimum standards of 0.55 HPRD for RNs and 2.45 HPRD for NAs that would be available only in limited circumstances where the following criteria are met:
- Where the workforce is unavailable, or the nursing home is at least 20 miles from another nursing home, as determined by CMS;
- The nursing home is making a good-faith effort to hire and retain staff; and
- The nursing home provides documentation of its financial commitment to staffing.
An exemption will not be granted if the nursing home has:
- Failed to submit payroll-based journal data under re-designated 42 CFR § 483.70(p);
- Been identified as a Special Focus Facility;
- Been cited for widespread insufficient staffing with resulting resident actual harm or a pattern of insufficient staffing with resulting resident actual harm, as determined by CMS; or
- Been cited at the “immediate jeopardy” level of severity for insufficient staffing within the 12 months preceding the survey during which the nursing home’s non-compliance is identified.
Staged Implementation
CMS proposes to stagger the implementation dates of these requirements to allow nursing homes the time needed to prepare and be in compliance with the new requirements.
Specifically, CMS proposes that the RN on site requirement, 24 hours per day for seven days per week, would take effect two years after the publication of the final rule. CMS also proposes that the individual minimum standards of 0.55 HPRD for RNs and 2.45 HPRD or NAs would take effect three years after the final rule’s publication. Under the Proposed Rule, nursing homes in rural areas would be required to meet the proposed RN on site, 24 hours per day for seven days per week, three years after publication of the final rule. Also, under the Proposed Rule, for nursing homes in rural areas, the proposed minimum standards of 0.55 hours for RNs and 2.45 hours for NAs would take effect five years after the publication of the final rule.
Enforcement
Under the Proposed Rule, enforcement actions would be taken against nursing homes that do not comply with these requirements. The remedies CMS may impose include, but are not limited to, termination of the provider agreement, denial of payment for all Medicare and Medicaid individuals by CMS, and/or civil money penalties.
Facility Assessment Changes
The Proposed Rule calls for changes to the existing facility assessment requirements at 42 CFR § 483.70(e) by moving the provisions to a standalone section and modifying the requirements to ensure that nursing homes have an efficient process for consistently assessing and documenting the necessary resources and staff that the nursing home requires to provide ongoing care for its population based on the specific needs of its residents.
State Medicaid Agency Disclosure
CMS is also proposing new regulations that would require that state Medicaid agencies report on the percent of payments for Medicaid-covered services in nursing facilities and intermediate care facilities for individuals with intellectual disabilities (often referred to as ICF/IIDs) that are spent on compensation for direct care workers and support staff.
Providing Comments
SNFs should review the Proposed Rule’s changes to determine the potential impact on their operation and determine whether to submit a comment to support, question, clarify or challenge any of the proposed changes. Comments are due by 11:59 p.m. ET on November 6, 2023.
If you have any questions, would like assistance preparing public comments, or would like additional information about this topic, please contact:
- Sean Fahey at (317) 977-1472 or sfahey@hallrender.com;
- Brian Jent at (317) 977-1402 or bjent@hallrender.com;
- Todd Selby at (317) 977-1440 or tselby@hallrender.com; or
- Your regular Hall Render attorney.
More information about Hall Render’s Post-Acute and Long-Term Care services can be found here.
Hall Render blog posts and articles are intended for informational purposes only. For ethical reasons, Hall Render attorneys cannot give legal advice outside of an attorney-client relationship.
