Reed Smith In-depth

Key takeaways

  • CMS final rule places unprecedented staffing burden on nursing facilities
  • Waivers and exemptions available, but ability to obtain them unclear
  • Compliance with facility assessment changes required by August 8, 2024

In a long-anticipated rule submitted for public inspection on April 22, 2024, the Centers for Medicare & Medicaid Services (CMS) finalized the minimum staffing standards for Medicare and Medicaid certified long-term care facilities.

The final rule is part of the administration’s focus on nursing home reform and comes a year after President Biden issued Executive Order No. 14095 requiring the U.S. Department of Health and Human Services (HHS) to consider actions that would reduce staffing turnover, which is associated with negative impacts on safety and quality of care.

In this client alert, we review the details of the rule and what Medicare and Medicaid certified long-term care facilities will need to do to comply with its provisions.

Introduction

This is the first major change to the requirements for long-term care facilities’ participation in Medicare and Medicaid involving staffing and facility assessments in more than eight years. In the preamble to the rule, CMS itself acknowledges that the changes in the rule will require “more than 79 percent of nursing facilities nationwide” to increase staffing. CMS also admits that the newly finalized provisions governing staffing requirements for registered nurses’ (RN) and nurse aides’ (NA) hour per resident day (HPRD) are more stringent than any currently existing state requirements.

  • In sum, the final rule requires long-term care facilities to ensure the following, except if an applicable waiver or exception is granted:
  • Implement new facility assessment provisions (42 C.F.R. § 483.71)
  • Have an RN onsite 24 hours a day, 7 days a week and available to provide direct resident care (42 C.F.R. § 483.35(b)(1) and (c)(1))
  • Have an overall minimum standard of 3.48 total nurse staff HPRD, which must include a minimum of 0.55 hours by RNs and 2.45 hours by NAs (42 C.F.R. § 483.35(b)(1)(i) and (ii))

Implementation and broad provisions of the rule

The rule, which is scheduled to be published in the Federal Register on May 10, 2024, was finalized with only a few meaningful changes from the text that was proposed in September 2023. The rule will take effect on June 21, 2024 and will be implemented on that date with some notable exceptions.