Providers in states that have recently increased their own nursing home staffing requirements may soon find themselves playing a complicated penalties and numbers game — and buried in additional paperwork.
Differences in total nurse staffing hours required, types of direct staff necessitated and documentation requirements are already leading to consternation in states such as New York and Illinois. They’ve adopted new rules but delayed enforcement given workforce limitations.
“Compliance is going to be a little more complicated and challenging for facilities in states that have their own requirements,” said attorney Aimee Delaney, a partner at Hinshaw & Culbertson who represents skilled nursing clients in Illinois. “Depending on the nature of those local requirements, maybe those facilities would be better situated for complying with the federal rule because they’re already in some kind of requirement and they’re used to having to comply, and it’s just finding the nuances. But I don’t think it will be that streamlined and efficient.”
Providers and their representatives are already diving deep to overlay the two rules that now cover them. It’s a process that is leading to consternation and some goal resetting.
And that’s before the Centers for Medicare & Medicaid Services has provided any guidance on how hard or how often it plans to hit providers with Civil Monetary Penalties for staffing violations. At least in some states, those could be applied on top of existing state-level fines.
“The worst case scenario will be layering of fines, and if there’s layering, you will see nursing homes close,” Stephen Hanse, president and CEO of the New York State Health Facilities Association, told McKnight’s Long-Term Care News Wednesday. “That’s not a threat. It’s just a reality when you look at the financial data of nursing homes.”
In New York, staffing regulations requiring 3.5 hours of daily direct patient care went into effect in 2022, but regulators soon granted a reprieve from penalties that would have been up to $2,000 a day. It remains in effect as state health department officials check compliance against each quarter of 2022, for which all 62 counties were declared in a “workforce crisis.”
Some 470 of 610 nursing homes in New York have been unable to comply regularly with the 3.5 hour standard, Hanse said. Still, no blanket exemption has been issued and providers must continue to document their attempts to hire and retain staff, with voluminous reporting demands.
In Illinois, Delaney noted, the state legislature pushed full implementation back to January of 2025. Logistical and technical requirements have already proved capable of tripping up provider compliance, and that concern may grow with extra demands at the federal level.
“This train is coming and it’s not necessarily something providers have in their control to eliminate,” Delaney told McKnight’s. “People have to get used to making sure PBJ data was submitted appropriately and understanding the implications of that, and the census information. … I imagine some of this might just be multiplied on a larger scale when we get to the CMS and federal requirements.”
Requirements for state waivers and a survey-first exemption policy at the federal level will also likely require more work and create more administrative burden for providers who need relief — a factor that Hanse said runs counter to CMS’ stated purpose of keeping more staff at the bedside.
Different stakes, different states
While federal hourly totals may not vex every provider in states that already hiked their regulations, major conflicts pop up in other details.
In Illinois, for instance, rules set two different hourly totals, dependent on whether a facility is classified as providing skilled or intermediate care.
Illinois, New York and Pennsylvania all allow licensed practical nurses to count for a significant share of daily direct care. It’s a flexibility that recognizes current staffing practices in the sector, but it would be diminished by the federal rule. The final version issued last week includes a 2.45-hour daily requirement for CNAs and a 0.55-hourly requirement for RNs, allowing LPNs to help facilities hit a total of 3.48 hours of direct patient care.
Under New York’s staffing law, for example, providers can now use a mix of RNs and LPNs to hit a 1.1-hour portion of the 3.5-hour total. The federal rule would mean that only half that, 0.55 hours, could be provided by LPNs.
“They conceded to put the LPN there but it’s not included in those ratios they gave you, and that’s the key when you’re trying to provide care to a population that has outpaced the workforce population,” Garry Pezzano, president and CEO of LeadingAge Pennsylvania, told McKnight’s. “The name of the game is flexibility. It’s understanding your community and doing that evidence-based assessment to understand what staff is required to deliver that care and have the flexibility to do it.”
His state also has both hourly requirements and per-patient ratios. Currently, those call for one CNA for every 12 residents, and one LPN per 25 residents, with less for night shifts. On July 1, the CNA requirement increases to 1:10.
Meeting the ratios, state hours and a different set of federal hours will require immense planning and constant juggling — even with call-outs. Providers are hoping that set of facts might lead lawmakers in their states to reassess conflicts.
“We will be working with the state, who I believe is very open to this, and figuring out what makes the most sense,” Pezzano said. ”It could be some kind of accommodation with the state requirements or — and I don’t know anything for sure — is it a possibility that we would defer to the federal requirements if we do the work and we figure out it meets the spirit. Is that a possibility?”
Fighting for changes and pay
The question is whether lawmakers will have an appetite for such change, given that many enacted tougher staffing regulations in response to public criticism of nursing home care that ratcheted up during COVID.
In New York, Hanse is backing legislation that would allow more staff, including therapists working directly with patients, to contribute to daily care totals. A similar approach was adopted in 2022 in Florida, which has one of the state’s highest daily care requirements at 3.6 total hours.
Nursing homes across the country beseeched CMS to consider such flexibility in its own rule, but to no avail.
“It paints a more accurate picture of the direct care of residents,” said Hanse, who noted the irony of working toward local relief that may not ultimately make a difference when CMS hiring rules go into effect over the next two to five years.
The bigger issue, of course, is how providers will handle the added cost of both compliance efforts and non-compliance. State penalties can be assessed per-day or increase with repeated violations, and CMS also announced in its 2025 pay rule that it was implementing a revised penalty system that could increase the financial threat of any serious violation.
Meanwhile, neither states nor the feds have bankrolled staffing initiatives with dedicated funding.
Pennsylvania notched a record Medicaid increase just before its staffing rule went into effect, but Pezzano said there’s no guarantee on a requested $70 million to help offset labor and inflationary costs in the latest budget negotiations. The state’s providers face an estimated $496 million price tag for year-one compliance with the federal rule.
“While these mandates may be well intentioned, the most important thing is that, to really, truly provide substantive assistance and care, government and providers need to work in partnership,” Hanse added. “What are the barriers, what are the obstacles and how do we overcome them? … “We need investment. We need partnerships. We need recognition of where we are and where we need to be, both financially, from a reimbursement standpoint and from a workforce perspective.”
