By Diane Marie O’Malley, Partner, Hanson Bridgett LLP
In an already difficult recruiting market, long-term care facilities now have the extra burden of complying with the new staffing rules implemented by the Centers for Medicare & Medicaid Services (CMS) and the Department of Health and Human Services. While some facilities already meet these requirements, certainly this will impact bottom lines of those providers who do not meet these standards and thus must start budgeting for this increased cost.
On April 22, 2024, CMS issued the Minimum Staffing Standards for Long-Term Care (LTC) Facilities and Medicaid Institutional Payment Transparency Reporting final rule. The regulations became effective June 21, 2024. The rule requires facility compliance with overall ratios beginning May 2026. Facilities have several years to comply with the new requirements as the final rule does provide that new requirements will be implemented on a staggered basis. It also includes the potential for obtaining hardship exemptions for certain facilities.
Similar to the new minimum wage rules for healthcare facilities in California, the timing for meeting standards differs for non-rural and rural facilities. Urban facilities providers must comply with the initial requirements by May 2026; rural facilities providers by May 2027. Urban facilities providers must comply with the final staffing requirements by May 2027; rural facilities providers by May 2029.
In brief, the rule provides numerous requirements regarding minimum staffing levels and related items, such as registered nurses (RNs) must be on site 24 hours a day, seven days a week. There must exist a total nursing staffing standard of 3.48 hours per resident per day. Facilities may use any combination of nurse staff — such as RN, licensed practical nurse and licensed vocational nurse or nurse aide — as part of the additional 0.48 hours per resident per day nurse staffing standard. There must be a minimum direct RN staffing of 0.55 hours per resident per day, and there must exist a minimum direct nurse aide staffing of 2.45 hours per resident per day.
More specifically, the final rule provides the following deadlines:
August 8, 2024, Facility Assessment Deadline
To better understand staffing needs, the final rule requires, first, that the facility assess the needs of each resident by seeking input from staff and families in order to create a plan that align staffing levels with residents’ needs. Specifically, all facilities must “conduct and document a facility-wide assessment to determine what resources are necessary to care for its residents competently during both day-to-day operations (including nights and weekends) and emergencies. The facility must review and update that assessment, as necessary, and at least annually. The facility must also review and update this assessment whenever there is, or the facility plans for, any change that would require a substantial modification to any part of this assessment.”
May 2026 Deadline for Staffing Levels For Non-rural Facilities.
After the assessment, non-rural facilities must implement the following by May 11, 2026:
- The facility must meet or exceed a minimum of 3.48 hours per resident day for total nurse staffing.
- Except when waived or exempted, the facility must have a registered nurse (RN) onsite 24 hours per day, for seven days a week that is available to provide direct resident care.
May 10, 2027, is the deadline for rural facilities.
May 2027 Deadline For Staffing Levels For Non-rural Facilities
The facility must meet or exceed a minimum of 3.48 hours per resident day for total nurse staffing including but not limited to a minimum of 0.55 hours per resident day for registered nurses and a minimum of 2.45 hours per resident day for nurse aides.
May 10, 2029, is the deadline for rural facilities.
Hardship Exemptions
Apparently recognizing the difficulty that some rural facilities will have in meeting these staffing requirements, even with the staggered implementation, the final rule allows for an exemption if the facility is located in in a geographic area where the RN, NA, or total nurse staff availability is not sufficient to meet area needs. Significant paperwork requirements exist to qualify for the exemption.
The final rule is available here: https://www.federalregister.gov/documents/2024/05/10/2024-08273/medicare-and-medicaid-programs-minimum-staffing-standards-for-long-term-care-facilities-and-medicaid
Legal Challenges
As many people expected, industry groups have mounted legal challenges to the final rule. On May 23, 2024, the American Health Care Association and other groups filed a lawsuit in the United States District Court for the Northern District Of Texas Amarillo Division American Health Care Association; LeadingAge; Texas Health Care Association; Arbrook Plaza; Booker Hospital District; Harbor Lakes Nursing & Rehabilitation Center v. Xavier Becerra, et al. Not surprisingly, the plaintiffs allege that CMS severely overstepped its authority and further that “the agency’s decision to adopt the new minimum-staffing standards was arbitrary and capricious, in violation of the Administrative Procedure Act.”
In addition to other relief, the plaintiff organizations seek “an order vacating and setting aside the 24/7 RN requirement and permanently enjoining defendants from taking any action to enforce that requirement” and “an order vacating and setting aside the HPRD requirements and permanently enjoining defendants from taking any action to enforce those requirements.”
Unfortunately, without a stay of the final rule while the litigation is pending, facilities must prepare to comply, beginning with the assessments that the facilities must implement by August 8, 2024.