By Attorney Matthew Parker, CELA*

Effective on April 22 of 2024, new staffing rules will gradually increase the number of staff employed by many nursing homes. They include an overall requirement that nursing facilities receiving Medicare and Medicaid provide residents with a minimum of 3.48 hours of nursing care each day.

Those hours will include just a little over a half hour of care from a registered nurse and 2.45 hours of care from a nurse’s aide. The balance of the time can be made up with other staff such as aides or LPNs.

There is a phase-in of this rule. By May 2027, an RN will have to be on duty 24/7 and the 3.48 hour requirement can be met by any staff type. The full implementation of the hours to be met by the RN and the aides begins in May of 2028.

The interim and final requirements will differ for urban and rural facilities, with the rural facilities having more time. There is also a broad hardship exemption, aimed at rural facilities if they can show that made a good faith effort to hire staff.

During the pandemic, nursing homes lost more of their workforce than any other health care sector—approximately 15 percent or 250,000 workers. While most other health care sectors have largely rebounded, nursing homes are not projected to return to pre-pandemic workforce levels until 2026.

Because of this, the requirement to increase staffing levels was met with extreme opposition from the nursing home industry. The Kaiser Family Foundation did an analysis of the Federal rules and found:

  • About 60% of the facilities would meet the interim staffing requirement of 3.48 hours.
  • However, fewer than 1 in 5 could currently meet the required number of hours for registered nurses and nurse aides, which means over 80% of facilities would need to hire additional staff.
  • 90% of for-profit facilities would need to hire additional nursing staff compared with 60% of non-profit and government facilities.

The consequences for not meeting the new staffing requirements is rather severe as facilities could lose Federal funding.

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