Headshot of CMS Administrator Chiquita Brooks-LaSure

The Centers for Medicare & Medicaid Services said it would exempt nursing homes from having registered nurse coverage for up to 8 out of 24 hours a day “under certain circumstances,” unveiling a critical new detail in the second part of today’s staffing rule rollout.

A director of nursing also can count toward the rule’s 24/7 RN requirement, CMS said, noting a change that providers will likely appreciate given their persistent challenges hiring RNs across the country.

“The RN onsite 24 hours a day, seven days a week requirement ensures that there is an RN available to help mitigate, and ultimately reduce, the likelihood of preventable safety events, particularly during evenings, nights, weekends, and holidays,” CMS said. “Therefore, CMS is finalizing, with revisions to its proposal, the requirement for an RN to be onsite 24 hours a day, seven days a week, and available to provide direct resident care. The 24/7 RN onsite can be the Director of Nursing (DON); however, they must be available to provide direct resident care.”

The 329-page rule itself follows an announcement from the White House early this morning that the final rule would increase to 3.48 hours of direct daily care per patient, up from a 3.0 standard proposed last September.

The White House said 3.0 of the total 3.48 hours must be split between registered nurses at 0.55 hours and 2.45 hours for certified nurse aides daily. The remaining time requirements were not immediately defined by the White House release.

The much-awaited rule, published in draft form around 4:15 p.m. ET, reveals more details about CMS officials’ interpretation of more than 46,000 comments on the rule it first proposed back in September.

“The resulting, evidence-based final rule appropriately prioritizes quality and safety of care gains from establishing minimum standards for nurse staffing, including RNs and NAs, with a particular emphasis on the direct care delivered at the bedside, and effective implementation of these new requirements,” the agency said. “These new required minimum staffing requirements will increase staffing in more than 79 percent of nursing facilities nationwide, and the specific RN and NA HPRD requirements exceed the existing minimum staffing requirements in nearly all States.”

Providers had all day expressed frustration with the teased information. Some questioned whether staff in non-direct care roles, for instance, could help providers meet round-the-clock RN provisions and whether there would be relief on any of the much-maligned details outlined in the proposal.

Many expressed dismay at provider-backed changes and additions that were not included.

“The final rule does not include any support for recruitment and training of needed staff. While the phase in provides some necessary time for recruiting, how can providers hire more RNs when they do not exist?” asked Katie Smith Sloan, president and CEO of LeadingAge.  “Nurse aides, who are the backbone of aging services, are also in short supply – yet again, the rule does not include support to recruit, train and hire more of these critical workers.

“By the Center for Medicare and Medicaid Services’ estimate, the rule will add to providers’ financial burden – by $43 billion, over 10 years,” she added. “Funding goes hand in hand with quality care. Care costs money, but Medicaid reimbursements, which provide the lion’s share of nursing homes’ funding, do not fully cover the cost of providing quality care. Regulations and enforcement, even with the best intentions, just can’t change that math.  Sadly, this rule’s outcome may well exacerbate existing issues older adults and families face in trying to access nursing home care: limited admissions, fewer beds, and, worse yet, nursing home closures.”

Timing concerns 

CMS revealed that it would maintain the staggered implementation it proposed initially, giving rural facilities up to five years to meet the last of the requirements, with three years as a deadline for non-rural providers.

The final rule also enshrines some key details for providers who will need to seek exemptions.

CMS said a facility may qualify for an exemption from the total nurse staffing requirement of 3.48 HPRD if the combined licensed nurse and nurse aide-to-population ratio in its area is a minimum of 20% below the national average.

A facility also may be eligible for an exemtion from the 0.55 RN HPRD requirement, and an exemption of eight hours a day from the RN on-site 24 hours per day for seven days a week requirement, if the RN-to-population ratio in its area is a minimum of 20% below the national average.

The same 20% standard applies for those seeking a waiver of the CNA hourly requirements.

But to secure that exemption, providers will have to document “good faith efforts” to hire and retain staff, such as through job postings, the number and duration of vacancies, job offers made, and competitive wage offerings. It will also have to offer reveal how much it spends on nurse staffing relative to revenue to surveyors and CMS. 

CMS also said it will indicate if a facility has obtained an exemption on Care Compare, a move some providers had anticipated and been concerned about.

The final rule’s announcement had been expected since the White House of Management and Budget finished reviewing it last week. But some criticized Monday’s timing. The Association of Jewish Aging Services, with over 80 members, said in a statement that it was “surprised and shocked that the White House would choose today,” the eve of Passover to release the nursing home staffing final rule.

“Taking action on this rule today is tone deaf on the part of the Administration,” the statement said. “The nation’s nonprofit Jewish faith-based nursing home providers are mission driven and committed to providing the highest quality care to older individuals. We share the Administration’s values and pursuit of quality. We also recognize that there are not enough registered nurses in the country to enable all nursing homes to meet the requirements of the final rule.

“Further, with 8.8 million open jobs in the economy and only 6.5 million people looking for jobs, it is difficult to see how increased front line staff mandates can reasonably be expected to be met without robust, focused funding and efforts on the part of the Administration,” the association continued.

This is a developing story. Please check back for more details.