April 26, 2024

Understanding the Latest Updates on Staffing Requirements in Long-Term Care Facilities

Kris B. Harmony, OTR/L, LNHA, MBA

Kris B. Harmony, OTR/L, LNHA, MBA

Understanding the Latest Updates on Staffing Requirements in Long-Term Care Facilities

Ensuring adequate staffing levels in long-term care facilities is paramount to delivering quality care to residents. Recent updates in regulations have brought forth changes and clarifications regarding staffing requirements. Let's delve into the key aspects of these updates, focusing on 24-hour RN staffing, facility assessments, exemptions, and associated deadlines.

I.    24/7 RN Staffing Requirement

According to the regulations, a registered nurse (RN) must be present on-site 24 hours a day, seven days a week, and available to provide care. The Director of Nursing (DON) can fulfill this requirement, but it's essential that they are available to provide care during their designated hours. However, the regulations are somewhat unclear regarding which other job codes contribute to meeting this 24/7 RN requirement.

It's specified in the regulations that the DON's hours count towards the 24/7 RN requirement, but it's not explicitly stated whether other nurses with administrative duties also contribute to meeting this requirement. Additionally, clarity is needed on whether administrative nurses count towards other staffing requirements, such as the .55 RN and 2.45 nurse aide hours per resident day.

Implementation of staffing standards varies depending on whether the facility is located in a rural or non-rural area. For the 24/7 RN requirement and total nurse staffing hours per resident day, urban facilities have two years to comply, while rural facilities have three years. The definition of rural has been revised to align with the Office of Management and Budget's definition, providing more consistency across programs.

II.    Facility Assessments

The regulations mandate comprehensive facility assessments addressing behavioral health issues and involving input from various stakeholders. These assessments inform staffing decisions, recruitment, retention, and contingency planning. The implementation deadline for facility assessments has been extended to 90 days from the date of publication, providing additional time for compliance.

The regulations have been largely finalized as proposed. These assessments must address behavioral health issues and involve input from various stakeholders, including:

•    direct care staff, 
•    residents, 
•    resident representatives, and 
•    other relevant staff members. 

The facility assessment must inform:

•    staffing decisions, 
•    including recruitment, 
•    retention, and 
•    contingency planning. 

Implementation of the facility assessment requirements has been extended to 90 days from the date of publication.

III.    Exemptions to Staffing Requirements:

Exemptions from the staffing requirements are available under certain circumstances, primarily based on workforce availability. However, exemptions are limited, and providers must demonstrate good faith efforts to comply with staffing standards. Exemptions are valid until the facility's next standard survey, ensuring ongoing compliance and resident safety.

There are several key points to consider regarding exemptions from staffing requirements:

1.    CMS has eliminated the previous 20-mile geographic designation criterion.

2.    Formerly, facilities were exempt if they were either located 20 miles from the next closest long-term care facility or in an area with 20% or more below the national average. CMS has removed the mileage requirement.

3.    The exemption for facilities with 20% or more below the national average pertains specifically to the 24/7 Registered Nurse (RN) staffing requirement. However, providers can only be exempt for a maximum of eight hours of that requirement.

4.    It's essential to note that providers are not entirely exempt from the 24/7 requirement if they qualify for an exemption.

5.    While providers are exempt from providing eight hours of RN coverage, they must still ensure 16 hours of RN coverage.

6.    Exempt providers have the exemption for eight hours of the total 3.48 nurse staffing requirement.

7.    When calculating 20% or more below the national average, providers will combine all nursing types to arrive at the total nurse staffing standard.

8.    If a provider meets the exemption criteria, they must demonstrate "good faith" efforts and ensure that their financial commitment remains unchanged.

9.    Providers must undergo a survey to ensure that insufficient staffing does not result in resident harm.

10.    The exemption remains valid until the next standard survey. This is a change from the proposed rule, as it was initially suggested to be valid for one year. However, CMS clarified, stating, "We recognize we don't always conduct standard surveys within one year, so your exemption is valid until your next standard survey."

IV.    Notifications for Exempt Providers

Providers receiving exemptions must make several notifications, including informing all residents, current and prospective residents, and the ombudsman office. Additionally, they must publicly post deviation from standards, ensure inclusion on Care Compare, and comply with notification requirements to avoid exemption removal. Providers cannot obtain exemptions if they fail to submit data, are special focus facilities, or have been cited for insufficient staffing.

Exempt Providers must inform:

•    All residents,
•    Current residents,
•    Prospective residents,
•    The ombudsman office.

Exempt Providers must delineate:

•    The degree of deviation from the standards.

Exempt Providers must ensure:
•    Public posting within the community and the nursing home, in visible and easily accessible areas.
•    Inclusion on Care Compare, indicating exemption status and deviation from standards. (Providers will be reporting to the state agencies and then the state agencies will be reporting on to CMS and then this information will be made publicly available.)
•    Failure to comply with notification requirements can lead to removal of the exemption.

Providers cannot obtain exemptions if:

•    They fail to submit PBJ Data,
•    They are a special focus facility, or
•    They have been cited at high or higher levels for insufficient staffing within the past 12 months.
Any occurrence of the above will result in immediate removal of the Provider's exemption.

V.    Deadlines
Implementation deadlines for staffing standards vary based on rural or non-rural status, with specific timelines for 24/7 RN Staffing and total nurse staffing hours per resident day. Non-compliance with deadlines can result in exemption removal, emphasizing the importance of timely compliance with regulations.

All of these requirements have a phased in implementation and it is exactly what was proposed for the staffing standards, but the staffing standards are a little different from the facility assessment standards.

a.    Facility Assessment Deadlines 

•    The date of publication is May 10, 2024. 
•    Originally proposed for implementation within 60 days of publication, the deadline has been extended to 90 days from the date of publication, i.e., August 8, 2024.
•    Providers now have an additional 30 days to comply.
•    Implementation begins from the date of publication, slated for May 10th.
•    Providers must have the facility assessment requirements implemented 90 days after May 10th, i.e., August 8, 2024.

b.    Staffing Standards Implementation Deadlines 

•    Implementation of hours per resident day and 24/7 RN occurs in two phases, contingent upon the Provider’s rural or non-rural status.
•    Non-Rural providers, both 24/7 RN and 3.48 hours per resident day total nurse staffing are to be implemented within two years from the finalization date.
•    Rural providers are given three years for implementation.
•    The definition of rural was finalized based on the OMB's definition, which includes more counties compared to the Census Bureau's definition.
•    This change ensures consistency with CMS's usage of the OMB definition in other programs and payment policies.

c.    Total 3.48 total nurse staffing hours per resident day Deadlines

•    Non-rural providers have three years to comply.
•    Rural providers are granted five years.
•    These timeframes remain unchanged from the proposed rule.

Understanding and adhering to staffing requirements are crucial for long-term care facilities to provide quality care and ensure resident safety. Providers must stay informed about regulatory updates, comply with implementation deadlines, and fulfill notification requirements to maintain exemption status. By prioritizing staffing standards, facilities can enhance resident outcomes and promote a culture of excellence in care delivery.

Have a great day!



Kris B. Harmony OTR/L, LNHA, MBA
​President and CEO
KrisBHarmony, LLC
Cell: 617.595.6032
Email: Kris@KrisBHarmony.com



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