What’s new: CMS posted a detailed fact sheet on the minimum staffing final rule as well as a link to the full text, which will be formally published in the Federal Register on May 10, 2024.

• Read AHCA/NCAL’s summary (login needed) of the rule. You can also watch a recording of AHCA/NCAL’s April 22 webinar.
• In addition, review the slides from today’s VHCA-VCAL member webinar. 

Major components of the CMS minimum staffing rule

Staffing standards: The staffing standards are different than the proposed rule. Unfortunately, they are worse. There are now three components.

1. There is an overall minimum standard of 3.48 total nurse staff hours per resident day (HPRD).
2. Within the 3.48 HPRD, a minimum 0.55 hours must be delivered by RNs and 2.45 hours must be provided by CNAs. For the remaining 0.48 hours, we can count any combination of CNAs, RNs, and LPN/LVNs.
3. There is a requirement for an RN onsite in every building 24 hours a day, 7 days a week.

Phase in: Different parts of the rule go into effect at different times, based on whether a building is urban or rural.

• The 24/7 RN requirement goes into effect in urban areas in two years and in rural areas in three years.
• The 3.48 overall staffing requirement goes into effect in urban areas in two years and in rural areas in three years.
• The 0.55 RN and 2.45 CNA requirement goes into effect in urban areas in three years and rural areas in five years.
• All facilities must meet new facility assessment requirements within 90 days of the final rule publication.

Waivers: There are waivers, but AHCA/NCAL is skeptical that providers will qualify. These include:

• For the 24/7 RN requirement, there are two options. First is the existing RN waiver process for SNFs, which is only available to rural facilities that meet the criteria. This waiver is subject to annual review. Second is the hardship exemption, which has extensive criteria including local workforce supply, good faith efforts to hire, and demonstrated financial commitment. The term of the hardship exemption is until the next standard recertification survey.
• For the HPRD requirements, there is a hardship exemption option, which requires a facility to be found noncompliant and has extensive criteria – including local workforce supply, good faith efforts to hire, and demonstrated financial commitment. The term of the hardship exemption is until the next standard recertification survey.

Funding: There is no funding for the additional staff. This is only one of the reasons that the policy is not possible to implement.

• CMS estimates the total cost of the rule at $43 billion over 10 years – or about $4.3 billion per year. AHCA/NCAL believes it is closer to more than $6 billion per year.
• There are no provisions requiring Medicare, Medicaid, or other payors to increase payment rates to providers for any of the rule requirements.

Penalties: CMS will publish more details on how compliance will be assessed and how enforcement remedies will be imposed after the publication of this final rule in advance of each implementation date for the different components of the rule.