CMS Minimum Staffing Requirements – Waiver Criteria

When the minimum staffing rules take effect as referenced in June’s Survey & Regulatory article and in the Centers for Medicare and Medicaid Services (CMS) final rule released on April 22, 2024, Minimum Staffing Standards for Long-Term Care Facilities and Medicaid Institutional Payment Transparency Reporting, CMS has outlined two existing statutory waiver options for the 24/7 RN requirement that may be available to facilities who meet specific criteria as described below.

Dually certified facilities MUST meet the requirements outlined for both SNFs and NFS, whichever is more stringent.

Nursing facilities (NFs only): Waiver of requirement to provide licensed nurses and a registered nurse on a 24-hour basis.

1. The facility must demonstrate to the satisfaction of the State that the facility has been unable, despite diligent efforts (including offering wages at the community prevailing rate for nursing facilities), to recruit appropriate personnel.
2. The State determines that a waiver of the requirement will not endanger the health or safety of individuals staying in the facility.
3. The State finds that, for any periods in which licensed nursing services are not available, a registered nurse or a physician is obligated to respond immediately to telephone calls from the facility.
4. A waiver is subject to annual State review.
5. In granting or renewing a waiver, a facility may be required by the State to use other qualified, licensed personnel.
6. The State agency granting a waiver of such requirements provides notice of the waiver to the Office of the State Long- Term Care Ombudsman (established under section 712 of the Older Americans Act of 1965) and the protection and advocacy system in the State for individuals with a mental disorder who are eligible for such services as provided by the protection and advocacy agency.
7. The facility must notify residents of the facility and their resident representatives of the waiver.

Skilled Nursing Facilities (SNFs): Waiver of the requirement to provide services of a registered nurse for at least 112 hours a week.

1. The facility is located in a rural area and the supply of skilled nursing facility services in the area are not sufficient to meet the needs of individuals residing in the area.
2. The facility has one full-time registered nurse who is regularly on duty at the facility 40 hours a week.
3. The facility either:

• Has only patients whose physicians have indicated (through physicians’ orders or admission notes) that they do not require the services of a registered nurse or a physician for a 48-hours period; or
• Has made arrangements for a registered nurse or a physician to spend time at the facility, as determined necessary by the physician, to provide necessary skilled nursing services on days when the regular full-time registered nurse is not on duty

4. The Secretary provides notice of the waiver to the Office of the State Long-Term Care Ombudsman and the protection and advocacy system in the State for individuals with developmental disabilities or mental disorders; and
5. The facility must notify residents of the facility and their resident representatives of the waiver.
6. The waiver is subject to annual renewal by the Secretary.

In addition to the waiver options above, CMS has outlined a “hardship exemption process” and required criteria as noted below.

CMS specifies that one or more of the HPRD requirements (3.48 total,0.55 RN, and 2.45 NA) and eight hours a day from the 24/7 RN requirement may be exempted for facilities found non-compliant and who meet the outline eligibility criteria. CMS notes that facilities cannot request, and a State would not conduct, a survey specifically for the purpose of granting an exemption, but rather that facility would be evaluated during a survey, such as the standard recertification survey, to determine if they were eligible for an exemption. Exemptions will be granted for a length of time until the next standard survey unless the facility falls into the exclusion criteria.

The following three criteria must be met for a facility to qualify for an exemption:

1. The workforce is ‘unavailable’ – as measured by having a nursing workforce that is a minimum of 20% below the national average for the applicable nurse staffing type (calculated using the Bureau of Labor Statistics (BLS) and Census Bureau data).
2. The facility makes a good faith effort to hire and retain staff. Good faith efforts include offering at least prevailing wages, to recruit and retain appropriate personnel. Evidence of this would be through job postings, vacant positions, and wage comparisons.
3. The facility documents its financial commitment to staffing. Facilities will need to provide information on how the facility expends on nurse staffing relative to revenue.

CMS outlined additional requirements for those facilities that would receive an exemption:

• The facility must post its exemption status in a prominent, publicly viewable location that is easy to understand, for all residents.
• The facility must inform each current and prospective resident, along with the Office of the State Long-Term Care Ombudsman of its exemption status and the degree to which it is not in compliance with the HPRD requirements.
• The list of facilities granted an exemption from this rule and the extent to which they each do not fulfill the requirements will be posted on Care Compare.

CMS outlined the following exemption exclusion criteria that would NOT allow a facility to receive an exemption:

1. Facilities that failed to submit PBJ data according to requirements.
2. Facilities that have Special Focus Facility (SFF) designation.
3. Facilities cited for widespread insufficient staffing with resultant resident actual harm or a pattern of insufficient staffing with resultant resident actual harm or cited at the immediate jeopardy level of severity with respect to insufficient staffing as determined by CMS, within the 12 months preceding the survey during which the facility’s non-compliance is identified.

If you have questions, please call Elena Madrid at (800) 562-6170, extension 105, or email.