CMS issues proposed rule setting minimum staffing standards for long-term care facilities


elders; nursing home; nurse

By: Michael Griffin and Alexandra F. Held

On September 6, 2023, the U.S. Department of Health and Human Services, through the Centers for Medicare & Medicaid Services (CMS), issued a proposed rule that, for the first time, would establish minimum staffing standards for long-term care facilities that participate in Medicare and Medicaid.  

The rule proposes two major changes to current staffing regulations. Currently, these regulations require generally that nursing homes provide services by “sufficient numbers” of qualified staff “to provide nursing care to all residents in accordance with resident care plans.” 42 CFR § 483.35 (a)(1). The proposal would require nursing homes to provide a minimum of 0.55 hours of care from a registered nurse (RN) per resident per day, as well as 2.45 hours of care from a nurse aide (NA) per resident per day. Additionally, the new rule would require a registered nurse (RN) be on site 24/7 to provide skilled nursing care to all residents in accordance with resident care plans. This is a large deviation from the current requirements, which mandate the services of an RN for 8 hours a day, 7 days a week. 42 CFR § 483.35 (b). If finalized, the rule would authorize CMS to take enforcement actions against non-compliant facilities with possible remedies including civil and monetary penalties, denial of payment, or termination of the provider agreement. 

The rule is intended to improve the quality of nursing home care based on studies demonstrating a high correlation between quality of care and staffing levels, data collected since 2016, and lessons learned during the COVID-19 Public Health Emergency. However, while well-intentioned, the proposed rule has resulted in an outcry from industry leaders and provider groups who say that the new staffing requirements are not achievable in the face of a current labor shortage across the healthcare industry, particularly in rural and underserved communities. These critics also contend that the staffing mandates proposed would create an economic hardship for a nursing home industry still reeling from the COVID-19 pandemic and that implementation will ultimately lead to reduced access to care for the elderly. Advocates of the proposed rule argue that higher staffing levels will not only improve the quality of care delivered in LTC facilities, but that it will also lead to more attractive jobs for nurses and a more stable work force. 

According to the Federal Register, CMS’s proposed rule received more than 40,000 public comments before the expiration of the public comment period on November 6, 2023. If finalized in its current form, the staffing proposals would be implemented in multiple phases over 3 years. In anticipation of the adoption of the proposal and implementation of a final rule, LTC facilities should become familiar with the proposed federal requirements and be prepared to meet them to the extent that they impose higher staffing levels than those already in place on the State level. Additionally, if the proposed requirements take effect, LTC facilities will need to revisit internal staffing policies and procedures to ensure that they comply with the new federal requirements. 

For more information, please contact Michael Griffin at michael.griffin@fmglaw.comAlexandra F. Held at, or your local FMG attorney.