Legal Alert

CMS Proposes Minimum Staffing Requirements for Long-Term Care Facilities

by Philip E. Legendy and Eric K. Temmel
October 18, 2023


The Centers for Medicare & Medicaid Services (CMS) recently published a proposed rule that, if finalized, will provide new minimum staffing level requirements for all long-term care facilities reimbursed by Medicare or Medicaid (LTC facilities). Comments on the proposed rule close November 6, 2023.

The Upshot

  • CMS proposes two changes to current LTC facilities regulations:
    • Facilities must provide registered nurse coverage onsite 24/7; and
    • For each resident, facilities must provide 0.55 hours of direct registered nurse care per day and 2.45 hours of direct nurse aide care.

The Bottom Line

If finalized, the proposed rule will require most LTC facilities (approximately 78 percent) to increase staffing levels for registered nurses and nurse aides, unless an exception applies.

According to CMS, the availability of a registered nurse on a 24-hour basis and certain minimum hours of direct care improve overall quality of care for LTC facilities residents. Therefore, CMS proposed a requirement for all such facilities (Medicare skilled nursing facilities and Medicaid nursing facilities) to provide registered nurse (RN) coverage on a 24-hour basis, seven days per week, as well as 0.55 hours of direct RN care to each resident each day. Additionally, the facilities must provide 2.45 hours of direct nurse aide (NA) care per resident per day. CMS did not propose minimum direct care requirements for licensed practical nurses (LPNs), nor other professionals, such as licensed vocational nurses. However, CMS seeks comment regarding whether an additional, total direct resident nursing care minimum threshold of 3.48 hours per resident per day (like the 3.2 hour requirement recently adopted in Pennsylvania) may be appropriate. The various requirements, if finalized, would likely be subject to staggered implementation beginning in 2026.

Exemptions from the proposed minimum requirements for direct RN and NA care may be available, but only where staffing is unavailable or the facility is more than 20 miles from the closest LTC facility, the facility makes and documents certain commitments to staffing, and the facility has complied with certain reporting and other existing CMS requirements related to staffing. Potential penalties for violation may include civil monetary fines, denial of Medicare or Medicaid payment, and termination of provider agreements with CMS.

Currently, LTC facilities must provide at least eight consecutive hours of RN coverage each day, and no specific minimum requirements exist for direct RN or NA care per resident per day. The increase to 24 hours of RN coverage, 0.55 hours per resident of RN coverage, and 2.45 hours per resident of NA coverage may therefore represent a material increase in staffing requirements for some facilities. If CMS adopts a minimum requirement for overall direct care per resident per day, LTC facilities should prepare to increase direct resident care and/or onsite coverage related to RNs and NAs. LTC facilities should monitor this rulemaking. Ballard Spahr’s health care attorneys are available to assist with any questions related to staffing requirements and applicable exceptions. 

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