New Federal Rule Sets Minimum Staffing Requirements for Nursing Homes — the Biggest Reform in Nursing Home Policy in Decades

nursing home staffA federal mandate that sets minimum staffing requirements for nursing homes was finalized by the Centers for Medicare and Medicaid Services (CMS) last week. Three final rules were issued to “fulfill President Biden’s commitment to support family caregivers, boost compensation and job quality for care workers, expand and improve care options, and improve the safety and quality of care in federally funded nursing homes.” This new law builds on the President’s historic Action Plan for Nursing Home Reform launched in the 2022 State of the Union. This new Elder Care law is important to our Medicaid Asset Protection, Elder Law, and Estate Planning clients and our other loyal readers, so today, I will share the details with you.

The new law requires that nursing homes will need to provide residents with a minimum of 0.55 hours of care from a registered nurse per resident per day, and 2.45 hours of care from a nurse aide per resident per day, exceeding existing standards in nearly all states. The rule also requires that facilities ensure that a registered nurse is on-site 24 hours per day, 7 days per week, up from the current federal requirement of 8 hours a day, 7 days a week. However, staffing levels are part the second phase of the new law, which takes effect 2 years after publication of the final rule for urban nursing facilities and 3 years after publication of the final rule for rural nursing facilities.

According to Kaiser Family Foundation, to meet the requirements of the new law, 90 percent of for-profit facilities need to hire additional nursing staff compared with 60 percent of nonprofit and government facilities. According to Health and Human Services Secretary Xavier Becerra, the new law will be extremely beneficial for nursing homes and their residents. He states, “(e)stablishing minimum staffing standards for nursing homes will improve resident safety and promote high-quality care so residents and their families can have peace of mind. When facilities are understaffed, residents suffer. They might be unable to use the bathroom, shower, maintain hygiene, change clothes, get out of bed, or have someone respond to their call for assistance. Comprehensive staffing reforms can improve working conditions, leading to higher wages and better retention for this dedicated workforce.”

Goals of the New Federal Minimum Staffing Mandate

More than 500,000 direct care workers provide care in nursing homes. By passing the new law and implementing staffing mandates, it will hopefully lead to improvements and enable nursing staff to provide the highest quality Elder Care. The following are some additional goals CMS mentions in passing the new rule:

CMS will:

  • Expand audits of the direct care staffing data that nursing homes must report to make sure that federal and state inspectors, as well as residents and their families, have accurate information, including through Nursing Home Care Compare, CMS’ informational website that families and prospective residents use to learn about facilities.
    • Audits are part of the first phase of the new law. This includes enhanced facility-wide staffing assessment requirements. Nursing homes will be required to assess the needs of each resident, including input from nursing facility staff audits and residents’ families or legal representatives, and develop a plan to meet required staffing levels given residents’ needs. The first phase of this new rule takes effect 60 days after publication of the final rule.
  • Analyze state inspection findings to ensure cited deficiencies receive the appropriate consequence, particularly in incidents involving resident harm. These analyses will ensure citations are applied more consistently and reflect the seriousness of the deficiency, permitting appropriate follow-through and enforcement.
  • Ensure that taxpayer dollars go toward safe, high-quality care including analysis of how nursing homes may profit at the expense of taxpayers and residents. In addition, state Medicaid agencies will be required to report on the percent of Medicaid payments for institutional long-term services and supports (LTSS) that are spent on compensation for direct care workers and support staff.
  • Enhance resident safety during emergencies. Nursing home residents are often among the most vulnerable to public health emergencies. A new effort will be put into place to improve nursing home resident safety during emergencies, including launching a national study of nursing home preparedness and key challenges and identifying practices to strengthen protections for nursing home residents.

“This is the biggest reform in nursing home policy in decades,” said David Grabowski of Harvard Medical School. He said many nursing homes have been understaffed for years but especially since the pandemic.

Nursing Homes Fear It Will Be Difficult to Comply

A recent Kaiser Family Foundation (KFF) study indicated that many nursing homes are concerned that it’s going to be hard to comply with the new mandates. Nursing home administrators have mentioned that they embrace the goal of quality care, but that there is currently a severe shortage of registered nurses and aides. They indicated the need for a government-supported effort to attract, incentivize, and train registered nurses and aides. CMS has already tried to address this concern by including in its plan an expenditure of $75 million toward recruiting and incentivizing nurses to work in nursing homes. These financial incentives include scholarships and tuition reimbursement for individuals who enter careers in nursing homes.

Medicaid Planning for Long-Term Care

Does your loved one need nursing home care, but you are concerned that the $12,000 – $17,0000 a month that it costs in our area will make your family go broke? You are not alone, but there are ways we can help, such as Medicaid Asset Protection and our proprietary Living Trust Plus® Asset Protection Trust.

KFF estimated that in 2020, 4.2 million people used Medicaid long-term services and supports (LTSS) delivered in home and community settings, and 1.6 million used LTSS delivered in institutional settings. Long-Term Care Medicaid (frequently called “middle-class Medicaid”) was designed not as welfare for low-income people but rather for anyone who can qualify for it, which includes many middle-class and even upper-class seniors. When a loved one needs long-term care, Medicaid is the single largest payor of nursing home care costs because so many people can’t afford to cover the costs themselves. Medicaid is often imperative to the individual’s quality of life.

Medicaid planning can be started while you are still able to make legal and financial decisions or can be initiated by an adult child acting as agent under a properly drafted Power of Attorney, even if you are already in a nursing home or receiving other long-term care services.

It is never too late to begin your own Estate Planning, Medicaid planning, Medicaid Asset Protection, nursing home planning, or other long-term care planning with an experienced Elder Care attorney. The attorneys here at the Farr Law Firm are experienced Estate Planning lawyers, Medicaid planning attorneys, Medicaid Asset Protection experts, nursing home planning experts, and long-term care planning advisors. Whenever you’re ready, we’re here to help:

Fairfax Medicaid Asset Protection: 703-691-1888
Fredericksburg Elder Law: 540-479-1435
Rockville Medicaid Planning: 301-519-8041
DC Elder Law Attorney: 202-587-2797

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About Evan H Farr, CELA, CAP

Evan H. Farr is a 4-time Best-Selling author in the field of Elder Law and Estate Planning. In addition to being one of approximately 500 Certified Elder Law Attorneys in the Country, Evan is one of approximately 100 members of the Council of Advanced Practitioners of the National Academy of Elder Law Attorneys and is a Charter Member of the Academy of Special Needs Planners.