SNFs will need to address updated facility assessment requirements, potentially triggered within 60 days of a final rule.
Nursing Home Staffing Exemptions Feel Impossible to Obtain, While CMS Criteria Remains Unclear
Facilities seeking a hardship exemption must satisfy four simultaneous criteria: demonstrating that workforce is unavailable (or that the facility is located at least 20 miles from another long-term care facility), showing a good-faith effort to hire and retain staff, documenting financial commitment to staffing, and maintaining an uninterrupted record of PBJ data submission.
Industry consultants note that the definitions for several of these criteria are vague and difficult to substantiate — particularly the “good faith effort” standard — making the exemption practically inaccessible for many operators. AHCA/NCAL described the process as punitive, cumbersome, and reflective of a limited understanding of how nursing homes operate, warning that facilities unable to qualify may face closure.
— Skilled Nursing News, November 13, 2023
Leaders Ponder: Will 1-Year Delay Save the Day on Staffing Mandate?
LeadingAge President and CEO Katie Smith Sloan said that CMS would likely need well over a year to review the approximately 42,000 public comments received on the proposed rule, pushing any final regulation past the 2024 presidential election cycle.
She noted that divergent opinions among commenters — spanning consumer advocates, union members, and providers — make reconciliation difficult, and that there is no regulatory requirement forcing the agency to finalize the rule at all. The delay was characterized as both a potential opportunity for providers to make their operational realities heard and a source of ongoing uncertainty for facilities trying to plan ahead.
— McKnight’s Long-Term Care News, November 7, 2023
Minimum Standards or Wishful Thinking?
Guest analysts Irving Stackpole and John Sheridan argue that the proposed rule’s workforce requirements are not achievable under current supply conditions, estimating a national shortfall of approximately 25,000 RNs and between 86,000 and 130,000 nursing assistants needed to achieve compliance.
They project that between 750 and 1,200 SNFs could close as a direct result of the unfunded mandate, with disproportionate impact on nonprofit and rural operators. The authors note that the rule contains no realistic funding mechanism or recruitment pathway, calling the staffing standards unachievable without significant investment in pipeline development and competitive pay rates.
— McKnight’s Long-Term Care News, October 2, 2023
With 80 Percent of SNFs Needing More Nurses, Analysis Finds Waivers Likely to ‘Mute’ Mandate
While 90% of for-profits would have to hire staff, that level is just 60% on the nonprofit and government-run side, a KFF breakdown of projections showed.
A KFF analysis found that if the proposed staffing rule were in effect today, only 19% of facilities would be in compliance — lower than CMS’s own 25% estimate, which did not account for the 24/7 RN coverage requirement. Ninety percent of for-profit SNFs would need to hire additional staff, compared to 60% of nonprofit and government-operated facilities. KFF also cautioned that existing RN hardship waivers could substantially reduce the mandate’s practical effect on minimum staffing levels, warning the overall impact may be “muted.”
— McKnight’s Long-Term Care News, September 19, 2023
Don’t Underestimate First Compliance Challenge of Proposed Staffing Rule: Experts
Experts warn that the facility assessment — not the staffing hour thresholds — represents the first significant compliance hurdle under the proposed rule, with updated assessment standards potentially taking effect just 60 days after finalization. The revised assessment would require broader staff involvement, evidence-based staffing justifications, and more frequent updates tied to changes in resident acuity and census.
Providers that have relied on templated assessments since the 2016 Requirements of Participation will need significant remediation to meet the enhanced standards, and PBJ data, MDS, PDPM, care plans, and quality measures may all factor into a compliant facility assessment.
— McKnight’s Long-Term Care News, September 18, 2023
Nursing Home Inspector Shortage Could Undermine Staffing Proposal
State survey agencies — responsible for on-site enforcement of the proposed staffing rule — are themselves facing acute workforce shortages, with more than 30 states reporting surveyor vacancy rates of at least 20%. As of early May 2023, 28% of nursing homes had not received an annual inspection in 16 months or longer, and 1 in 9 had not been fully inspected in two years. Harvard health policy professor David Grabowski warned that enforcement gaps could encourage non-compliance, noting that nursing homes may decide it is better to defer staffing up if state agencies lack capacity to conduct inspections.
— Axios, September 7, 2023
