The Centers for Medicare and Medicaid Services (“CMS”) almost certainly changed the Labor Day weekend plans for many policy analysts and others when it released its long-awaited minimum staffing Proposed Rule for long-term care facilities on Friday, September 1, 2023. The rule was anticipated as part of the Biden-Harris administration’s Nursing Home Reform initiative intended to ensure safe and quality care in long-term care facilities.

The Proposed Rule requires specific staffing levels for registered nurses (“RNs”) and nurse aides (“NAs”):

• 55 RN hours per resident day (“HPRD”)
• 45 Nurse Aide HPRD
• RN staffing 24 hour per day, seven days per week

In the Proposed Rule, which is subject to a 60-day comment period that commenced upon publication in the Federal Register on September 6, 2023, CMS emphasizes that the minimum staffing levels are a floor and may be increased depending on the acuity level of residents on a facility-specific basis. Disappointingly, the Proposed Rule does not include licensed practical nurses/licensed vocational nurses (“LPNs/LVNs”) in the staffing requirements. Although CMS invites comments on allowing substitution of NAs with LPNs/LVNs in extraordinary cases, CMS failed to recognize the skill set, scope of practice, and value that LPNs/LVNs bring to the long-term care field.

CMS allows facilities to claim a one-year hardship exemption from the HPRD requirement. However, the criteria are extensive, and the method proposed for claiming the exemption will be burdensome for any long-term care facility. The exemption can be extended in one-year increments if the facility continues to meet the criteria. Exemptions would be publicly posted.

A waiver may be obtained for the 24/7 RN utilizing the existing process for the current RN eight hour/day requirement.

The Proposed Rule also requires expansion of the Facility Assessment:

• Creates a new regulator section for the Facility Assessment, which separates it from administration requirements.
• Facilities must develop and maintain a staffing plan that supports recruitment and retention activities of the facility.
• The facility staffing plan must address staffing for all shifts and days of the week and adjust based on significant changes in the resident population. The staffing plan must include contingency plan for non-emergency events that have the potential to affect resident care.
• The Facility Assessment must include the use of evidence-based, data-driven methods that consider resident condition that corresponds to the resident assessments.
• Behavioral health issues and staff skill sets are also highlighted in the Facility Assessment requirements.

The Proposed Rule calls for a phase-in of the requirements based on whether the facility is in an urban or rural area. CMS will utilize the U. S. Census definition for identification of “urban” and “rural.”

• HPRD:
  • Urban facilities: Three years
  • Rural facilities: Five years
• 24/7 RN:
  • Urban facilities: Two years
  • Rural facilities: Three years
• Facility Assessment:

Penalties for non-compliance include:

• Denial of payment for new admissions, directed plans of correction, directed education, or other enforcement actions
• Civil money penalties
• Temporary management
• State monitoring
• Transfer of residents
• Provider agreement termination

CMS notes that 49% of long-term care facilities do not meet the 0.55 RN HPRD, whereas 72% do not meet the 2.45 NA HPRD, and less than 20% have 24/7 RN hours. CMS estimates the 10-year cost to be at $40.6 billion with an average cost of $4.1 billion annually. Unfortunately, CMS has not authorized any additional funding for long-term care facilities to meet the increased staffing requirements.

The long-term care industry continues to be challenged with excessively burdensome regulations. Regardless, providers continue to overcome these challenges while providing valued and quality-driven services to the aging population. Industry leaders, provider organizations, consumers, and other stakeholders will no doubt be weighing in on the Proposed Rule prior to the expiration of the 60-day comment period on November 6, 2023, and it remains to be seen whether CMS will make any regulatory adjustments as a result of those comments.