Nearly eight months have passed since The Centers for Medicare and Medicaid Services (CMS) issued a proposed rule to set minimum staffing standards for nursing homes. At the time, the proposed CMS staffing mandate was met with criticism from all sides. Some expressed concern over the added costs and the challenges of adding to their staff amidst nationwide nursing home staffing shortages. Others were concerned that the minimal standards didn’t go far enough to promote safer care.
The dust has settled — for now. Since the close of the public comment period in November 2023, CMS has been at work reviewing 46,520 comments submitted by consumers, advocacy groups, long-term care providers and ombudsmen, labor unions, and more. Based on these comments, CMS updated its original proposed mandate, releasing the final CMS minimum staffing rule on April 22, with a publish date of May 10.
So what are the new CMS minimum staffing requirements for nursing homes and when do they apply? Here are 5 key takeaways for healthcare facilities.
1. The Proposed Staffing Standards for RNs and Aides Are Locked In
When it first proposed its rule for minimum staffing standards for long-term care facilities — CMS 3442-P — CMS set baseline HPRD (hours per resident day) of 0.55 for registered nurses (RNs) and 2.45 for nurse aides (NAs), while also requiring an RN to be on staff 24 hours per day, 7 days per week. The final CMS minimum staffing rule has now locked in these position-specific staffing standards, which the agency says will be “implemented and enforced independent of a facility’s case-mix…as they are the minimum standard of staffing.”
Just as a refresher, CMS defines HPRD as “the total number of hours worked by each type of staff divided by the total number of residents.” To illustrate how this might look in a facility, here’s a breakdown of what HPRD for RNs and NAs would look like under the CMS nursing home staffing rule based on hypothetical resident numbers.
| Residents | RN Daily Hours (HPRD: 0.55) | NA Daily Hours (HPRD: 2.45) |
| 20 | 11 | 49 |
| 40 | 22 | 98 |
| 60 | 33 | 147 |
| 80 | 44 | 196 |
| 100 | 55 | 245 |
2. A Total Nurse Staffing Standard Will Apply
The CMS proposed staffing rule also sought public comments on whether a total nurse staffing standard of 3.48 HPRD (or a different number) should apply instead of, or in addition to, the RN and NA minimums. CMS noted that just using an overarching total nurse staffing standard would give more flexibility to LTC facilities to determine the breakdown of their nursing staff. It also noted that applying a total standard in addition to the proposed RN and NA staffing standards would deter facilities currently meeting the RN and NA standards from decreasing their overall staffing in an effort to meet the bare minimum.
The final CMS minimum staffing rule is finalizing the total nurse staffing standard in addition to the minimum RN and NA standards. This means that in addition to the 0.55 HPRD required for RNs and 2.45 HPRD required for NAs, facilities must include an additional 0.48 HPRD using any combination of nursing staff, which can include licensed practical nurses (LPNs) or licensed vocational nurses (LVNs) as well as RNs and NAs.
3. An RN Must Be Available for On-site Care at All Times
After the 24/7 RN support requirement was announced with the proposed rule, the public comment period included discussion of whether this could be satisfied through remote RN oversight. With the final rule, CMS has made it clear that an RN must “be onsite 24 hours a day, seven days a week,” and that the RN must be “available to provide direct resident care.”
However, this may not be as significant of a compliance challenge as it first appears. CMS stated that this requirement can be satisfied by a Director of Nursing (DON), so long as they are an RN and available to provide direct care to residents.
4. Facilities Must Develop a Staffing Plan for Recruitment and Retention
Citing an April 2023 Executive Order addressing nursing staff turnover, the CMS proposed staffing rule added a requirement that facilities “develop and maintain a staffing plan to maximize recruitment and retention of nursing staff.” This would be in addition to existing assessments required of facilities.
Some public comments suggested additional time for facilities to comply with this requirement. In response, CMS noted that all LTC facilities already prepare a facility assessment and that it shouldn’t take “an extended period of time” to factor in their recruitment and retention plans. That said, the final rule has provided a 90-day extension of time for facilities to comply with this requirement.
While the final CMS minimum staffing rule doesn’t provide many specifics on what is required in the staffing plan, it does require that a good faith effort be made to support hiring and recruitment and it specifically stresses the need to have contingency planning in place for staffing events.
In the absence of clear criteria provided by CMS, when developing their staffing plans facilities should consider such factors as patient safety goals and any relevant state laws setting nursing ratios. In planning for a mix of full-time vs. contract staffing, facilities should also weigh the potential risks of employee misclassification and the legal, financial, and patient care implications that come with it.
5. There’s Time to Comply and Hardship Exemptions Are Available
In the CMS minimum staffing proposal, the agency laid out a phased implementation plan, covering a three-year period for non-rural facilities and up to a five-year compliance period for rural facilities, both starting from the date of publication of the final rule. Relying on the OMB definition of “rural,” the final rule adopts roughly the same timeline for key requirements:
| Requirement | Non-Rural Facilities | Rural Facilities |
| Staffing Plan / Facility Assessment Updates | 90 days | 90 days |
| Onsite 24/7 RN | 2 years | 3 years |
| Total Nurse Staffing (3.48 HRPD) | 2 years | 3 years |
| RN Staffing (0.55 HPRD) | 3 years | 5 years |
| NA Staffing (2.45 HPRD) | 3 years | 5 years |
Facilities facing challenges with this implementation timeline can seek temporary relief from certain requirements by requesting a temporary hardship exemption. However, according to the final CMS staffing rule, in making the request, the facility must show that it is:
- Operating in an area where the ratio of provider-to-population is 20% below the national average.
- Making a good faith effort to hire and retain staff.
- Providing documentation of its financial commitment to staffing.
- Posting clear notice of its exemption status in each resident facility in a prominent location.
- Providing individual notice of its exemption status to all current and prospective residents and to the Office of the State Long-Term Care Ombudsman.
Need Help With Your Staffing Plan?
As the CMS minimum staffing rule takes effect, facilities will face added compliance challenges in an uncertain hiring market. But here’s the good news — in addition to providing you with the latest compliance updates, IntelyCare also offers a diverse mix of staffing solutions to help you meet your staffing, and compliance, requirements for the long-term.
Legal Disclaimer: This article contains general legal information, but it is not intended to constitute professional legal advice for any particular situation and should not be relied on as professional legal advice. Any references to the law may not be current as laws regularly change through updates in legislation, regulation, and case law at the federal and state level. Nothing in this article should be interpreted as creating an attorney-client relationship. If you have legal questions, you should seek the advice of an attorney licensed to practice in your jurisdiction.