CMS Issues Proposed Rule on Minimum Staffing Requirements for Long-Term Care Facilities

King & Spalding

On September 1, 2023, CMS issued the Minimum Staffing Standards for Long-Term Care (LTC) Facilities and Medicaid Institutional Payment Transparency Reporting proposed rule (the Proposed Rule), which imposes nurse staffing requirements in LTC facilities participating in Medicare or Medicaid. These rules are intended to improve the quality of care furnished to LTC facility residents.

The Proposed Rule consists of three core staffing proposals:

  1. Three years after the publication date of the final rule (five years for rural facilities), facilities would need to meet minimum nurse staffing standards of 0.55 and 2.45 hours per resident per day by registered nurses (RNs) and nurse aides (NAs), respectively.
  2. Two years after the publication date of the final rule (three years for rural facilities), facilities would be required to staff an RN onsite 24 hours a day, seven days a week.
  3. Sixty days after the publication date of the final rule, facilities would need to comply with enhanced facility assessment requirements. Enhanced facility assessment requirements include, among other things, the use of: (i) evidence-based methods when care planning for residents; and (ii) the facility assessment to assess the specific needs for each resident unit in the facility and develop and maintain a staffing plan to maximize recruitment and retention of nursing staff.

CMS estimates that approximately 75 percent of LTC facilities would need to increase staffing to comply with the proposed staffing requirements. The Proposed Rule includes possible one-year hardship exemptions if the facility meets certain criteria, such as workforce unavailability, facility location, showing good faith efforts to hire and retain staff, and demonstrating a financial commitment to staffing through documentation of staffing expenditures relative to revenue. If implemented, facilities that fail to comply with the proposed requirements would be subject to enforcement actions, including termination of Medicare or Medicaid provider agreements, denial of Medicare or Medicaid payments, and civil monetary penalties.

Also, in the interest of promoting public transparency, CMS is proposing that states publicly report the percentage of Medicaid payments for services in nursing facilities and intermediate care facilities for individuals with intellectual disabilities that are spent compensating direct care workers and support staff.

Interested parties may submit a comment by November 6, 2023. The Proposed Rule is available here and the fact sheet is available here.

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