CMS Releases Proposed Nursing Home Minimum Staffing Rule

Proposal comes out after inadvertent release of new staffing report

For the past eighteen months, the Centers for Medicare & Medicaid Services (CMS) said it will release a proposed rule requiring minimum staffing in nursing homes. Today was the day, but its release came after a report commissioned by CMS was inadvertently posted online earlier this week.

At a high level, what does the proposed rule require, and what about the findings in that CMS report? We have your pressing questions answered here!

What does the proposed staffing rule require?

While many believed that a minimum staffing level would reflect an earlier 2001 report indicating 4.1 hours per resident day (HPRD), the proposed rule mandates HPRD for two disciplines – Registered Nurses (RNs) at 0.55 HPRD and Nurse Aides (NAs) at 2.45 HPRD. It does not require any licensed practical nurse staffing minimums. CMS indicates these are minimum staffing levels and they expect higher staffing to reflect patient populations and acuity, for example. Further, CMS seeks comments on whether CMS should propose other levels, such as a total hours minimum of 3.48 HPRD along with RN and NA minimums.

CMS states they are basing the proposed minimums on their new 2022 staffing report [see questions below for details] that found “statistically significant difference in safety and quality care” at certain minimum levels. Also, CMS wants the minimums to be higher than state minimum staffing requirements in order to push quality/safety improvements while also balancing cost versus benefit in order to yield the strongest improvements in quality and safety for residents.

In addition, the proposed rule would require a RN to be on site 24 hours a day, seven days a week and able to provide care. This is a separate requirement from the 0.55 HPRD RN requirement.

Finally, the rule includes additional facility assessments requirements.

How would these minimums work?

CMS provides an example to explain what long-term care (LTC) providers would need to do in order to meet minimum levels:  

As an example, when establishing the proposed HPRD level of 0.55 for RNs and 2.45 for NAs, we note that the minimum number of RN hours (that is 0.55 HPRD) provided in a facility that has 100 residents and runs an 8-hour shift per 24 hours, would require a total of 55 RN hours per 24 hours. In other words, at least two RNs on staff each 8-hour shift, plus a third RN for one shift, would be necessary in this scenario although no per shift minimum is being established in this rule. Similarly, the minimum number of NA hours (that is 2.45 HPRD) provided in a facility that has 100 residents and runs an 8-hour shift per 24 hours will require at least a total of 245 NA hours per 24 hours. In other words, at least 10 NAs on staff each 8-hour shift, plus a third NA for one shift would be necessary in this scenario although no per shift minimum is being established in this rule.

What are the new facility assessment enhancements?

CMS states that its goal is to ensure these minimums are both implementable and enforceable, as determined through both the Payroll-Based Journal System as well as on-site surveys. The agency also wants to work against any inverse incentives to reduce staffing to these minimums. Therefore, CMS proposes the following:

• Clarifying that evidence-based methods must be used when care planning for residents
• Requiring use of facility assessments to assess specific needs of each resident and adjust as necessary based on any significant changes in resident population
• Requiring input of staff including leadership, management, direct care (nurse staff) representatives of direct care and staff who provide other services
• Requiring development of a staffing plan to maximize recruitment and retention of staff

What if we can’t find/hire enough staff?

CMS proposes an exemption/hardship process for the RN and NA HPRD minimum. A facility must meet all of the following:

• Be in a geographical area with insufficient nursing workforce
• Be located at least 20 miles from another nursing home
• Make good faith efforts to hire and retain staff
• Have a financial commitment to staffing
• Be surveyed to assess health and safety of residents

Some facilities would be ineligible for this exemption outright, including:

• Facilities failing to submit Payroll-Based Journal data
• Facilities on the special focus facility list
• Facilities identified with widespread insufficient staffing in past 12 months resulting in actual harm or a pattern of insufficient staffing resulting in actual harm or cited with immediate jeopardy for insufficient staffing

What is the timeline for implementing these requirements?

CMS states it is aware that the majority (79%) of LTC facilities would need to increase staffing to meet the proposed requirements and, therefore, will phase their proposal in over three or five years.

• Phase 1 (urban areas) would have 60 days to comply with facility assessment requirements
• Phase 2 (urban areas) would have two years to meet the 24/7 RN on site requirement
• Phase 3 (urban areas) would have three years to meet the 0.55 RN and 2.45 NA HPRD requirements

Due to particular concerns for rural long-term care facilities, CMS proposes the following implementation timeframe:

• Phase 1 (rural areas) would have 60 days to comply with facility assessment requirement
• Phase 2 (rural areas) would have three years to meet the 24/7 RN on site requirement
• Phase 3 (rural areas) would have five years to meet the 0.55 RN and 2.45 NA HPRD requirements

How does the rule incorporate the new 2022 staffing report that was released?

CMS references the report and its findings throughout its proposed rule. Overall, the 2022 report highlights the positive relationship between nursing home staffing and quality outcomes, such as reduced pressure ulcers, emergency department visits, rehospitalizations, and outbreaks and deaths related to COVID-19 along with substantial reductions in delayed or omitted clinical care. With respect to specific staffing disciplines, the 2022 report found:

• RNs — quality and safety consistently increase when RN staffing levels increased
• LPNs – there was no consistent relationship of quality and safety with LNP staffing but the report found a negative correlation between LPNs and RNs. In other words, when there are more LPNs, there are fewer RNs.
• Nurse aides — quality and safety only increase at the highest levels of nurse aide staffing.

The 2022 report also outlined four staffing scenarios, ranging from 3.3 to 3.88 HPRD, for CMS to consider. CMS does reference various aspects of these as well as asks for comments on alternative staffing minimums from what it has proposed. See images from 2022 report below.

Next Steps

This is a proposed rule and comments may be submitted for 60 days after the rule is officially published in the federal register (September 6, 2023). This is another opportunity for nursing homes and stakeholders to provide feedback related to the proposal’s impact. CLA continues to review the rule.

CLA has been on the forefront of analyzing this issue and helping nursing homes across the country prepare for any eventuality. Reach out today if you have questions or we can assist your organization with an operational assessment, market analysis, strategic and facilities planning, reimbursement and minimum data set changes or anything else.

Additional Resources

• CMS Fact Sheet on proposed staffing rule
• CMS proposed minimum staffing rule
• CMS nursing home resource center
• Abt 2022 nursing home staffing report
• CLA’s white paper on navigating the nursing home industry landscape