The Centers for Medicare and Medicaid Services (CMS) issued a final rule for the Minimum Staffing Standards for Long-Term Care Facilities and Medicaid Institutional Payment Transparency Reporting. This rule establishes a minimum staffing floor that facilities are required to uphold, barring any granted exemptions. CMS finalized the total nurse staffing standard of 3.48 hours per resident day (HPRD), which must include 0.55 HPRD of direct registered nurse (RN) care and 2.45 HPRD of direct nurse aide (NA) care. The remainder of the 0.48 HPRD can be a combination of nurse staff (RNs, LPNs/LVNs, NAs) to comply with the total nurse staffing standard.

RN Onsite Requirement

RNs play a critical role in assessing and caring for residents, especially in the face of increasing medical complexity and acuity. The current regulations require an RN to be onsite eight consecutive hours a day, seven days a week. CMS is increasing this requirement to have RNs onsite 24 hours a day, seven days a week, to ensure RN availability to help mitigate and reduce likely preventable safety events. The Director of Nursing (DON) can be the RN on site, but they must be available to provide direct resident care. CMS included a hardship exemption of 8 hours a day from the 24/7 RN requirement for certain circumstances.

Strengthened Facility Assessment

Facilities are already required to conduct and review a facility-wide assessment to determine what resources are necessary to care for residents on a daily or emergent basis. CMS is strengthening this requirement by using evidence-based methods when care planning for residents, including those with behavioral health needs, including input from a member of the governing body, the medical director, administrator, DON, direct care staff, representatives of direct care staff, residents, resident representatives, and family members when conducting the facility assessment to determine needs; and developing a staffing plan to maximize recruitment and retention of staff.

Regulatory Flexibility

CMS understands that there may be challenges in the availability of the workforce to hire workers, especially in some rural areas. In addition to the exemption of 8 hours a day of RN coverage, CMS also finalized criteria for a temporary hardship exemption based on a provider-to-population ratio, which is a minimum of 20% below the national average using data from the U.S. Bureau of Labor Statistics and the U.S. Census Bureau. Additionally, facilities would have to complete documentation of good faith efforts to hire and retain staff and the facility’s financial commitment to staffing.

The facility would have to be surveyed for compliance prior to being granted an exemption. Once the exemption is granted, the facility will be required to publicly post a notice of its exemption status in the facility, viewable to the residents, provide notice of its exemption status and the degree to which it is not in compliance with the HPRD requirements, to each current and prospective resident; and send a copy of the notice to the Ombudsman. The exemption would also be indicated on the Medicare.gov Care Compare website. These exemptions would only be effective until the next standard survey and could be extended unless the facility meets exclusion criteria as designated by CMS.

Phased-In Approach to minimum staffing requirements

CMS will phase in these requirements in three phases based on rural vs. non-rural facility status:

Phase 1—All facilities must meet the facility assessment requirements within 90 days of the final rule’s publication.

Phase 2 – The requirements for facilities to meet the 3.48 HPRD total nurse staffing and 24/7 RN requirements would be within two years (non-rural facilities) and three years (rural facilities) of the final rule publication.

Phase 3 – The requirements for meeting the 0.55 RN and 2.45 NA HPRD would be within three years (non-rural facilities) and five years (rural facilities) of the final rule publication.

The Compliance Store is here to ensure that facilities are kept up to date with the latest regulatory and compliance changes. As CMS provides guidance on these new standards, we will continue to monitor and update our tools and resources to ensure that facilities have the most updated information available. We have tools to assist with facility assessments and other resources to help determine staffing needs.

If you have any questions about these changes or how we can help your facility stay compliant, contact us online or at (877)-582-7347.