Background

CMS initially proposed minimum staffing requirements for skilled nursing facilities in September 2023. The agency later finalized the rule in April 2024.

Under the rule, nursing homes are required to provide a minimum of 3.48 hours of nursing care per resident day, which will include 0.55 hours of care from an RN per resident day and at least 2.45 hours of care from a nurse aide per resident day.

The rule also requires nursing homes to have an RN on site 24 hours a day, seven days a week. Currently, CMS requires at least eight consecutive hours of RN presence each day and a licensed nurse of any level on duty 24 hours a day.

Facilities are allowed to use any combination of staff — including RNs, licensed practical nurses, licensed vocational nurses, or nurse aids — to account for additional time.

Currently, the rule is scheduled to be phased in with a staggered timeline, depending on where a facility is located. Non-rural nursing homes must meet the staffing requirements by May 2027, while rural nursing homes have until May 2029. There will also be temporary hardship exemptions for places where it's difficult to find staff.

According to HHS Secretary Xavier Becerra, the rule is about setting a standard for quality of care. "We believe, that with more and more Americans going to nursing homes, it's time to make sure that quality is the standard that everyone strives for," he said.

Nursing homes sue over the staffing mandate

Last Thursday, the American Health Care Association (ACHA), the Texas Health Care Association, and three Texas nursing homes sued the Biden administration over the staffing mandate in the U.S. District Court for the Northern District of Texas.

In the lawsuit, the organizations said the rule "explicitly and brazenly" departs from previous nursing home staffing requirements established by Congress. They argued that CMS and HHS don't have the authority to require nursing homes to meet specific staffing requirements and ratios.

"We cannot stand idly by when access is on the line and federal regulators are overstepping their authority," said ACHA president and CEO Mark Parkinson. "Hundreds of thousands of seniors could be displaced from their nursing home; someone has to stand up for them, and that's what we're here to do."

The organizations also said that the current shortage of RNs and nursing assistants will make complying will the rule almost impossible. For example, the rule estimates that nursing homes in Texas will have to hire 46% more RNs and 28% more nursing assistants, but the lawsuit argues that there aren't enough nurses in the state to sustain that increase.

Advisory Board's Monica Westhead noted, "It's clear that skilled nursing facilities (SNFs) need more staff — and higher-licensed staff. However, ongoing shortages and a challenging financial environment make that hard for many SNFs to envision achieving."

The Texas Health Care Association warned that the staffing mandate could lead to nursing home closures in the state. "More than two-thirds of Texas facilities cannot meet any of the new requirements, and the state's anticipating a growing shortage of nurses. We must protect access to care for elder Texans and seniors across the country," said Derek Prince, the association's board chair.

There have also been other efforts to remove the staffing mandate. Earlier this year, the House Ways and Means committee sent a bill to block the staffing mandate to the House floor. Similarly, Reps. Michelle Fischbach (R-Minn.) and Greg Pence (R-Ind.) recently introduced a measure to reverse the mandate through the Congressional Review Act.

In response to the lawsuit, HHS said it stands by the mandate.

"The status quo in too many nursing homes unacceptably endangers residents and drives workers into other professions," said HHS spokesperson Sara Lonardo. "The Biden-Harris Administration is committed to fulfilling the President's promise to improve safety and support workers so everyone can age with dignity."

For more resources in this area, check out Advisory Board's research on the state of the post-acute workforce, as well as this expert insight on the underlying causes of nurse recruitment and retention challenges. (Goldman, Axios, 5/24; Bannow, STAT+ [subscription required], 5/24; Muoio, Fierce Healthcare, 5/24; Eastabrook, Modern Healthcare, 5/24)

CMS has proposed new mandatory staffing levels for SNFs. We analyzed the data to see how many SNFs would be able to meet the proposed requirements, nationally and by county. Read on to understand where SNFs are struggling – and what SNFs and hospitals can do to prepare.