61352 Federal Register / Vol. 88, No. 171 / Wednesday, September 6, 2023 / Proposed Rules 

1https://data.cms.gov/summary-statistics-on-useand-payments/medicare-service-type-reports/cmsprogram-statistics-medicare-skilled-nursing-facility. 

2https://www.whitehouse.gov/briefing-room/ 

statements-releases/2022/02/28/fact-sheetprotecting-seniors-and-people-with-disabilities-byimproving-safety-and-quality-of-care-in-the-nationsnursing-homes/. 3Executive Order on Increasing Access to High 

Quality Care and Supporting Caregivers. White 

House. Accessed at https://www.whitehouse.gov/ 

briefing-room/presidential-actions/2023/04/18/ 

executive-order-on-increasing-access-to-highquality-care-and-supporting-caregivers/. Published 

on April 18, 2023. Accessed on April 19, 2023. 

4Zheng, Q, Williams, CS, Shulman, ET, White, 

AJ. Association between staff turnover and nursing 

home quality—evidence from payroll-based journal 

data. J Am Geriatr Soc. 2022; 70(9): 2508–2516. 

doi:10.1111/jgs.17843. 

5Castle, Nicholas G, and John Engberg. ‘‘Staff 

turnover and quality of care in nursing homes.’’ 

Medical care vol. 43,6 (2005): 616–26. doi:10.1097/ 

01.mlr.0000163661.67170.b9. 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Centers for Medicare & Medicaid 

Services 

42 CFR Parts 438, 442, and 483 

[CMS–3442–P] 

RIN 0938–AV25 

Medicare and Medicaid Programs; 

Minimum Staffing Standards for LongTerm Care Facilities and Medicaid 

Institutional Payment Transparency 

Reporting 

AGENCY: Centers for Medicare & 

Medicaid Services (CMS), Department 

of Health and Human Services (HHS). 

ACTION: Proposed rule. 

SUMMARY: This proposed rule would 

establish minimum staffing standards 

for long-term care facilities, as part of 

the Biden-Harris Administration’s 

Nursing Home Reform initiative to 

ensure safe and quality care in longterm care facilities. In addition, this rule 

proposes to require States to report the 

percent of Medicaid payments for 

certain Medicaid-covered institutional 

services that are spent on compensation 

for direct care workers and support staff. 

DATES: To be assured consideration, 

comments must be received at one of 

the addresses provided below, by 

November 6, 2023. 

ADDRESSES: In commenting, please refer 

to file code CMS–3442–P. 

Comments, including mass comment 

submissions, must be submitted in one 

of the following three ways (please 

choose only one of the ways listed): 

1. Electronically. You may submit 

electronic comments on this regulation 

to http://www.regulations.gov. Follow 

the ‘‘Submit a comment’’ instructions. 

2. By regular mail. You may mail 

written comments to the following 

address ONLY: Centers for Medicare & 

Medicaid Services, Department of 

Health and Human Services, Attention: 

CMS–3442–P, P.O. Box 8016, Baltimore, 

MD 21244–8016. 

Please allow sufficient time for mailed 

comments to be received before the 

close of the comment period. 

3. By express or overnight mail. You 

may send written comments to the 

following address ONLY: Centers for 

Medicare & Medicaid Services, 

Department of Health and Human 

Services, Attention: CMS–3442–P, Mail 

Stop C4–26–05, 7500 Security 

Boulevard, Baltimore, MD 21244–1850. 

For information on viewing public 

comments, see the beginning of the 

SUPPLEMENTARY INFORMATION section. 

FOR FURTHER INFORMATION CONTACT: The 

Clinical Standard Group’s Long Term 

Care Team at 

HealthandSafetyInquiries@cms.hhs.gov 

for information related to the minimum 

staffing standards. 

Anne Blackfield, (410) 786–8518, for 

information related to Medicaid 

institutional payment transparency 

reporting. 

SUPPLEMENTARY INFORMATION: 

Inspection of Public Comments: All 

comments received before the close of 

the comment period are available for 

viewing by the public, including any 

personally identifiable or confidential 

business information that is included in 

a comment. We post all comments 

received before the close of the 

comment period on the following 

website as soon as possible after they 

have been received: http://

www.regulations.gov. Follow the search 

instructions on that website to view 

public comments. CMS will not post on 

Regulations.gov public comments that 

make threats to individuals or 

institutions or suggest that the 

individual will take actions to harm the 

individual. CMS continues to encourage 

individuals not to submit duplicative 

comments. We will post acceptable 

comments from multiple unique 

commenters even if the content is 

identical or nearly identical to other 

comments. 

To assist readers in referencing 

sections contained in this document, we 

are providing the following Table of 

Contents. 

Table of Contents 

I. Executive Summary 

A. Purpose 

B. Summary of Major Provisions 

C. Summary of Cost and Benefits 

II. Minimum Staffing Standards for Nursing 

Homes in Response to the Presidential 

Initiative 

A. Background 

B. Provisions of the Proposed Regulations 

III. Medicaid Institutional Payment 

Transparency Reporting Provision 

IV. Collection of Information Requirements 

V. Response to Comments 

VI. Regulatory Impact Analysis 

I. Executive Summary 

A. Purpose 

This proposed rule would establish 

minimum staffing standards to address 

ongoing safety and quality concerns for 

the 1.4 million 1 residents receiving care 

in Medicare and Medicaid certified 

Long-Term Care (LTC) facilities. On 

February 28, 2022, President Biden 

announced that CMS would propose 

minimum staffing standards that 

nursing homes must meet, based in part 

on evidence from a new research study 

that will focus on the level and type of 

staffing needed to ensure safe and 

quality care.2 In addition, on April 18, 

2023, President Biden issued ‘‘Executive 

Order on Increasing Access to HighQuality Care and Supporting 

Caregivers’’,3 which directs the 

Secretary of HHS to consider actions to 

encourage LTC facilities to reduce 

nursing staff turnover that is associated 

with improving safety and quality of 

care.4 5

These safety and quality concerns 

stem, at least in part, from chronic 

understaffing in LTC facilities, and are 

particularly associated with insufficient 

numbers of registered nurses (RNs) and 

nurse aides (NAs), as evidenced from, 

inter alia, a review of data collected 

since 2016 and lessons learned during 

the COVID–19 Public Health Emergency 

(PHE). Numerous studies, including our 

new research study as well as existing 

literature, have shown that staffing 

levels are closely correlated with the 

quality of care that LTC facility 

residents receive, and with improved 

health outcomes. The minimum staffing 

standards would also provide staff in 

LTC facilities the support they need to 

safely care for residents, help prevent 

staff—burnout, thereby reducing staff 

turnover, which can lead to improved 

safety and quality for residents and staff. 

This proposed rule would also promote 

public transparency related to the 

percent of Medicaid payments for 

certain institutional services that are 

spent on compensation to direct care 

workers and support staff. 

B. Summary of Major Provisions 

We are proposing to update the 

Federal participation ‘‘Requirements for 

Medicare and Medicaid Long Term Care 

Facilities’’ minimum staffing standards 

(‘‘LTC requirements’’). The updates to 


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6Abt Associates. (2022). Nursing Home Staffing 

Study Comprehensive report. Report prepared for 

the Centers for Medicare & Medicaid Services. 

https://edit.cms.gov/files/document/nursing-homestaffing-study-final-report-appendix-june-2023.pdf. 

the LTC requirements proposed in this 

rule would be used to survey facilities 

for compliance and enforced as part of 

CMS’s existing survey, certification, and 

enforcement process for LTC facilities. 

In addition, consistent with the 

President’s strategic plan, we also 

intend to display our determinations of 

facility compliance with the minimum 

staffing standards on Care Compare. We 

welcome comments on the most 

appropriate approach for doing so. 

We are proposing to establish Federal 

minimum nurse staffing standards for a 

number of reasons, including the 

growing body of evidence 

demonstrating the importance of staffing 

to resident health and safety, continued 

insufficient staffing, non-compliance by 

a subset of facilities, the need to reduce 

variability in the minimum floor for 

nurse-to-resident ratios across States by 

creating a consistent floor, and, most 

importantly, to reduce the risk of 

residents receiving unsafe and lowquality care. 

The proposed regulatory updates are 

based on evidence we collected using a 

multifaceted approach, which included 

conducting a new nursing home staffing 

study, gathering feedback during 

listening sessions, considering more 

than 3,000 comments received from the 

Fiscal Year 2023 Skilled Nursing 

Facility Prospective Payment System 

proposed rule (FY2023 SNF PPS) 

request for information (RFI), assessing 

Payroll-Based Journal (PBJ) System data 

on nursing home staffing, and reviewing 

the existing literature. 

Specifically, we propose to revise 

§ 483.35(b) to require an RN to be on site 

24 hours per day and 7 days per week 

to provide skilled nursing care to all 

residents in accordance with resident 

care plans. We also propose individual 

minimum staffing type standards, based 

on case-mix adjusted data for RNs and 

NAs, to supplement the existing 

‘‘Nursing Services’’ requirements at 42 

CFR 483.35(a)(1)(i) and (ii) to specify 

that facilities must provide, at a 

minimum, 0.55 RN hours per resident 

day (HPRD) and 2.45 NA HPRD. We 

note that while the 0.55 and 2.45 HPRD 

standards were developed using casemix adjusted data sources, the standards 

themselves will be implemented and 

enforced independent of a facility’s 

case-mix. In other words, facilities must 

meet the 0.55 RN and 2.45 NA HPRD 

standards, at a minimum, regardless of 

the individual facility’s patient casemix. RN and NA staffing can never be 

lower than these proposed minimum 

standards, and if the acuity needs of 

residents in a facility require a higher 

level of care, a higher RN and NA 

staffing level will also be required. CMS 

is also seeking comments on whether in 

addition to the 0.55 RN and 2.45 NA 

HPRD standards, a minimum total nurse 

staffing standard, discussed later in the 

rule, should also be required. For 

compliance, hours per resident day 

(HPRD) is defined as staffing hours per 

resident per day which is the total 

number of hours worked by each type 

of staff divided by the total number of 

residents as calculated by the CMS. As 

further described below, the proposed 

minimum staffing standard is supported 

by literature evidence, analysis of 

staffing data and health outcomes, 

discussions with residents, staff, and 

industry 6 and other factors. 

We note that each of the minimum 

staffing requirements independently 

supports resident health and safety. 

Therefore, compliance with the 24/7 RN 

requirement does not imply compliance 

with the minimum 0.55 RN HPRD and 

2.45 NA HPRD requirements or vice 

versa. Specifically, as discussed 

elsewhere in this rule, the presence of 

an RN in a LTC facility on a 24-hour 

basis improves overall quality of care. 

Similarly, but separately, a minimum 

number of RN and NA hours per 

resident per day improve overall quality 

of care. Both independently and 

collaboratively, these requirements 

would support compliance with 

statutory mandates to provide services 

to attain or maintain the highest 

practicable physical, mental, and 

psychosocial well-being of each 

resident, in accordance with a written 

plan of care. 

As noted elsewhere, this proposal is 

informed by multiple sources of 

information, including the 2022 Nursing 

Home Staffing Study, more than 3,000 

public comment submissions, academic 

and other literature, PBJ System data, 

and detailed listening sessions with 

residents and their families, workers, 

health care providers, and advocacy 

groups. We recognize that some of the 

materials we have relied upon offer 

support for a higher minimum HPRD 

standard. For several reasons discussed 

later in this proposed rule, including the 

importance of setting achievable staffing 

targets as the long-term care sector 

recovers from the effects of the COVID– 

19 pandemic and the desire to preserve 

resident access to care as the sector 

expands hiring to meet staffing 

standards, we are proposing a set of 

policies that balance the urgent need to 

improve resident safety and quality of 

care alongside these practical 

considerations. The policies include 

minimum HPRD standards for direct 

care by nursing staff, required access to 

an RN 24 hours per day 7 days per 

week, and enhanced facility staffing 

assessments. 

For example, the 2022 Nursing Home 

Staffing Study found that a total nurse 

staffing level of 3.67 or 3.88 HPRD was 

linked with additional facilities 

improving quality and safety relative to 

current low performers, and that total 

nurse staffing levels between 3.8 HPRD 

and 4.6 HPRD (including 1.4 licensed 

nurse HPRD) were linked with 

reductions in the amount of delayed or 

omitted clinical care. Our proposal 

squares these associations between 

higher HPRD nurse staffing levels and 

better care outcomes with the goal of 

establishing implementable minimum 

standards that can substantially improve 

quality and safety at all LTC facilities in 

the near-term. We also considered 

variation and contradiction between 

different information sources, including 

the 2022 Nursing Home Staffing Study, 

namely regarding the benefits of a 

staffing standard inclusive of or specific 

to LPN/LVNs. We further considered the 

benefits of a requirement for 24/7 onsite RN staffing and strengthened 

facility staffing assessments, which 

under this proposed rule apply 

independently of the HPRD 

requirements. 

The resulting, evidence-based 

proposal appropriately prioritizes 

quality and safety of care gains from 

establishing minimum standards for 

RNs and NAs, with a particular 

emphasis on the direct care delivered at 

the bedside by NAs, and effective 

implementation of these new 

requirements. As noted elsewhere, if 

finalized, these new required floors 

would increase staffing in more than 75 

percent of nursing facilities nationwide, 

and the proposed NA and RN HPRD 

requirements exceed those of nearly all 

States. We remain committed to 

continued examination of staffing 

thresholds, including careful work to 

review quality and safety data resulting 

from initial implementation of finalized 

policies, and robust public engagement. 

Should subsequent data indicate that 

additional increases to staffing 

minimums would be warranted and 

feasible, we anticipate that we will 

revisit the minimum staffing standards 

to shift them toward the higher ranges 

supported by the evidence, such as 

those described above, with continued 

consideration of all relevant factors. 

We also propose to revise the existing 

Facility Assessment requirements at 

§ 483.70(e) by moving the provisions to 

a standalone section and modifying the 


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61354 Federal Register / Vol. 88, No. 171 / Wednesday, September 6, 2023 / Proposed Rules 

7Section 1819(d)(4)(B) of the Act contains the 

word ‘‘well-being’’, which does not appear in 

section 1919(d)(4)(B). We do not interpret the 

presence of this word as requiring separate 

regulatory treatment of Medicare and Medicaid long 

term care facilities. 

requirements to ensure that facilities 

have an efficient process for 

consistently assessing and documenting 

the necessary resources and staff that 

the facility requires to provide ongoing 

care for its population that is based on 

the specific needs of its residents. 

We are proposing to stagger the 

implementation dates of these 

requirements sufficiently to allow 

facilities the time needed to prepare and 

be in compliance with the new 

requirements. Specifically, we propose 

that the RN on site, 24 hours per day, 

for 7 days a week would take effect 2 

years after publication of the final rule; 

and we propose that the individual 

minimum standards of 0.55 HPRD for 

RNs and 2.45 HPRD for NAs would take 

effect 3 years after publication of the 

final rule. Under the proposal facilities 

in rural areas would be required to meet 

the proposed RN on site 24 hours per 

day, for 7 days a week, 3 years after 

publication of the final rule; and the 

proposed minimum standards of 0.55 

HPRD for RNs and 2.45 HPRD for NAs 

would take effect 5 years after 

publication of the final rule. 

Exemption from the proposed 

minimum standards of 0.55 HPRD for 

RNs and 2.45 HPRD for NAs would be 

available only in limited circumstances, 

where all four of the following criteria 

are met. The four exemption criteria are: 

(1) where workforce is unavailable, or 

the facility is at least 20 miles from 

another long-term care facility, as 

determined by CMS; (2) the facility is 

making a good faith effort to hire and 

retain staff; (3) the facility provides 

documentation of its financial 

commitment to staffing; and (4) the 

facility has not failed to submit PBJ data 

in accordance with re-designated 

483.70(p), is not a Special Focus Facility 

(SFF); has not been cited for widespread 

insufficient staffing with resultant 

resident actual harm or a pattern of 

insufficient staffing with resultant 

resident actual harm, as determined by 

CMS; and has not been cited at the 

‘‘immediate jeopardy’’ level of severity 

with respect to insufficient staffing 

within the 12 months preceding the 

survey during which the facility’s noncompliance is identified. 

If finalized, enforcement actions, also 

called remedies, would be taken against 

LTC facilities that are not in compliance 

with these Federal participation 

requirements. The remedies CMS may 

impose include, but are not be limited 

to, the termination of the provider 

agreement, denial of payment for all 

Medicare and/or Medicaid individuals 

by CMS, and/or civil money penalties. 

We are also proposing new 

regulations at 42 CFR 442.43 (with a 

cross-reference at 42 CFR 438.82) that 

would require that State Medicaid 

agencies report on the percent of 

payments for Medicaid-covered services 

in nursing facilities and intermediate 

care facilities for individuals with 

intellectual disabilities (ICF/IIDs) that 

are spent on compensation for direct 

care workers and support staff. This 

proposal is designed to inform efforts to 

address the link between sufficient 

payments being received by the 

institutional direct care and support 

staff workforce and access to and, 

ultimately, the quality of services 

received by Medicaid beneficiaries. 

Taken together, we believe that these 

proposals will improve safety and 

quality of care for residents in Medicare 

and Medicaid certified LTC facilities 

and Medicaid certified ICF/IIDs. 

C. Summary of Cost and Benefits 

TABLE 1—COST AND BENEFITS

Provision description Total transfers/costs 

Comprehensive Staffing Requirement for LTC Facilities ......................... Without accounting for any exemptions, we estimate that the overall 

economic impact for the proposed minimum staffing requirements for 

LTC facilities (that is, collection of information costs and compliance 

with the 24/7 RN, facility assessment, and minimum 0.55 RN and 

2.45 NA HPRD requirements), which includes staggered implementation of the requirements, would result in an estimated cost of approximately for $32 million in year 1; $246 million in year 2; $4 billion 

in year 3; with costs increasing to $5.7 billion by year 10. We estimate the total cost over 10 years will be $40.6 billion, which was derived from FY 2021 Part V of the Medicare Cost Report. LTC facilities would be expected to bear the burden of these costs, unless 

payors increase rates to cover cost. Quantified benefits include but 

are not limited to, increased community discharges, reduced hospitalizations, and emergency department visits, with a minimum estimated savings of gross costs of $318 million per year for Medicare 

starting in year 3. Various categories of other important but hard to 

quantify benefits include reduced staff burnout and turnover, and increased safety and quality of care for LTC residents. Lack of quantification is also noteworthy as regards key categories of costs. 

Medicaid Institutional Payment Transparency Reporting ......................... The overall economic impact for the proposed reporting requirement is 

a one time cost of $38 million and ongoing annual costs of $18 million per year. 

II. Minimum Staffing Standards for 

Long-Term Care Facilities 

A. Background 

1. Statutory Authority and Regulatory 

Requirements for Direct Care Nurse 

Staffing in Long-Term-Care (LTC) 

Facilities 

Sections 1819 and 1919 of the Social 

Security Act (the Act) set out regulatory 

requirements for Medicare and 

Medicaid long-term care facilities, 

respectively. Specific statutory language 

at sections 1819(d)(4)(B) and 

1919(d)(4)(B) of the Act permit the 

Secretary of the Department of Health 

and Human Services (the Secretary) to 

establish any additional requirements 

relating to the health, safety, and wellbeing 7 of residents in skilled nursing 

facilities (SNF) and nursing facilities 

(NF), as the Secretary finds necessary. 

This provision and other statutory 

authorities set out in section 1819 and 


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8https://www.cms.gov/Medicare/QualityInitiatives-Patient-Assessment-Instruments/ 

NursingHomeQualityInits/Staffing-DataSubmission-PBJ. 

1919 of the Act provide CMS with the 

authority to issue a regulation revising 

the existing requirements and to 

mandate a staffing minimum for nursing 

care. Under sections 1866 and 1902 of 

the Act, providers of services in Long 

Term Care (LTC) facilities seeking to 

participate in the Medicare or Medicaid 

program, or both, must enter into an 

agreement with the Secretary or the 

State Medicaid agency, respectively. 

LTC facilities seeking to be Medicare or 

Medicaid providers of services must be 

certified as meeting Federal 

participation requirements. These 

Federal participation requirements are 

the basis for survey activities in LTC 

facilities for ensuring residents’ 

minimum health and safety 

requirements are met and maintained, to 

receive payment and remain in the 

Medicare or Medicaid program or both. 

LTC facilities include SNFs for 

Medicare and NFs for Medicaid. The 

Federal participation requirements for 

SNFs, NFs, or dually certified facilities, 

are codified in the implementing 

regulations at 42 CFR part 483, subpart 

B. In addition to those provisions, 

sections 1819(b)(1)(A) and 1919(b)(1)(A) 

of the Act require that a SNF or NF must 

care for its residents in such a manner 

and in such an environment as will 

promote maintenance or enhancement 

of the safety and quality of life of each 

resident. Section 1819(b)(4)(C)(i) of the 

Act requires that a SNF must provide 

24-hour licensed nursing services, 

sufficient to meet the nursing needs of 

its residents, and must use the services 

of a registered professional nurse at least 

8 consecutive hours a day. These 

provisions are largely paralleled at 

section 1919(b)(4)(C)(i) of the Act for 

NFs. Sections 1819(f)(1) and 1919 (f)(1) 

of the Act require that the Secretary 

assure that requirements which govern 

the provision of care in skilled nursing 

facilities under this title, and the 

enforcement of such requirements, are 

adequate to protect the health, safety, 

welfare, and rights of residents and to 

promote the effective and efficient use 

of public moneys. 

In addition, sections 1819(b)(2) and 

1919(b)(2) of the Act require that a SNF 

or NF provide services to attain or 

maintain the highest practicable 

physical, mental, and psychosocial 

well-being of each resident, in 

accordance with a written plan of care. 

The plan of care must describe the 

medical, nursing, and psychosocial 

needs of the resident and how the needs 

will be met. The plan of care is 

developed with the resident or 

resident’s family or legal representative, 

and by a team which includes the 

resident’s attending physician and an 

RN with responsibility for the resident. 

The plan of care should be periodically 

reviewed and revised by the team after 

required assessments. Sections 

1819(b)(3) and 1919(b)(3) of the Act 

require that a SNF or NF conduct a 

comprehensive, accurate, standardized, 

reproducible assessment of each 

resident’s functional capacity. 

Assessments are required to be 

conducted or coordinated by a 

registered nurse at specified 

frequencies. 

The participation requirements for 

LTC facilities (Federal requirements) are 

set forth at §§ 483.1 through 483.95. In 

general, the health and safety standards 

for LTC facilities address facility 

administration, resident rights, care 

planning, quality assessment, 

performance improvement, services 

provided, emergency preparedness, as 

well as staffing requirements. Federal 

requirements state that LTC facilities 

must use the services of a registered 

nurse (RN) for at least 8 consecutive 

hours a day, 7 days a week 

(§ 483.35(b)(1)), and must provide the 

services of ‘‘sufficient numbers’’ of 

licensed nurses and other nursing 

personnel, which includes but is not 

limited to nurse aides (NAs), 24 hours 

a day to provide nursing care to all 

residents in accordance with the 

resident care plans (§ 483.35(a)(1)). The 

LTC facility must also designate an RN 

to serve as the director of nursing (DON) 

on a full-time basis (§ 483.35(b)(2)). 

While these Federal requirements do 

specify a specific number of hours that 

these licensed nurses and other nursing 

personnel must be available, there is no 

requirement that those hours be 

specifically dedicated to direct resident 

care. With respect to staffing 

requirements specific to individual 

residents, such as RN staffing levels per 

resident, Federal regulations currently 

require that facilities provide staff 

sufficient to ‘‘assure resident safety and 

attain or maintain the highest 

practicable physical, mental, and 

psychosocial well-being of each 

resident’’. Facilities should determine 

whether this is met through ‘‘resident 

assessments and individual plans of 

care and considering the number, 

acuity, and diagnoses or the facility’s 

resident population’’ (§§ 483.35 and 

483.70(e)). 

2. The Need for a Minimum Nurse 

Staffing Requirement in LTC Facilities 

On October 4, 2016, we issued a final 

rule titled, ‘‘Medicare and Medicaid 

Programs; Reform of Requirements for 

Long-Term Care Facilities’’ (81 FR 

68688). This final rule significantly 

revised the list of requirements that LTC 

facilities must meet to participate in the 

Medicare and Medicaid programs. Prior 

to the final rule, LTC facilities’ 

requirements had not been 

comprehensively reviewed and updated 

since 1991 (56 FR 48826, September 26, 

1991), despite substantial changes in 

service delivery in this setting. The final 

rule included revisions that reflect 

advances in the theory and practice of 

LTC service delivery and safety. The 

various revisions sought to achieve 

broad-based improvements in the 

quality of care provided in LTC facilities 

and in resident safety. As part of this 

2016 final rule, we revised LTC facilities 

requirements to include competency 

requirements for determining the 

sufficiency of nursing staff, based on a 

facility assessment requirement that 

LTC facilities must conduct to 

determine what resources are needed to 

competently care for their residents 

during both day-to-day operations and 

emergencies. In the 2015 proposed rule, 

we included a robust discussion 

regarding the long-standing interest in 

increasing the required hours of nurse 

staffing per day and the various 

literature surrounding the issue of 

minimum nurse staffing standards in 

LTC facilities (see 80 FR 42199). In the 

2016 final rule, we also included a 

discussion of the feedback received 

regarding our competency-based staffing 

approach (see 81 FR 68688). At the time, 

we highlighted the importance of 

establishing national staffing standards 

to promote safe, high- quality care for 

residents in LTC facilities and our 

desire to further explore potential 

options, however we noted that we 

needed additional evidence before 

pursuing potential requirements. We 

acknowledged that additional literature 

evidence along with data from sources 

such as Payroll Based Journal (PBJ) 

System would be helpful in determining 

if and what staffing levels should be 

established as minimum staffing 

standards to improve safety and the 

quality of care.8 Additionally, the 

availability of PBJ System data is 

essential to adequately enforcing 

oversight of minimum staffing 

standards. Since issuing the 2016 final 

rule and establishing a competencybased approach to staffing in the list of 

LTC requirements, we have collected 

several years of mandated PBJ System 

data and new evidence from the 

literature. 


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10Figueroa JF, Wadhera RK, Papanicolas I, et al. 

Association of Nursing Home Ratings on Health 

Inspections, Quality of Care, and Nurse Staffing 

With COVID–19 Cases. JAMA. 2020;324(11):1103– 

1105. doi:10.1001/jama.2020.14709. 

11https://agsjournals.onlinelibrary.wiley.com/ 

doi/epdf/10.1111/jgs.16689. 

12 Kelly LA, Gee PM, Butler RJ. Impact of nurse 

burnout on organizational and position turnover. 

Nurs Outlook. 2021 Jan-Feb;69(1):96–102. doi: 

10.1016/j.outlook.2020.06.008. Epub 2020 Oct 4. 

PMID: 33023759; PMCID: PMC7532952. 

13Campbell, S., A. Del Rio Drake, R. Espinoza, K. 

Scales. 2021. Caring for the future: The power and 

potential of America’s direct care workforce. Bronx, 

NY: PHI. Accessed at http://phinational.org/wpcontent/uploads/2021/01/Caring-for-the-Future2021-PHI.pdf. 

14 Gasdaska, A., Segelman, M., Porter, K.A., 

Huber, B., Feng, Z., Barch, D., Squillace, M., Dey, 

J., & Oliveira, I. Nursing Home Staffing Disparities 

were Exacerbated during the COVID–19 Pandemic 

in 2020 (Research Brief). Washington, DC: Office of 

the Assistant Secretary for Planning and Evaluation, 

U.S. Department of Health and Human Services. 

September 12, 2022. Accessed at https://

aspe.hhs.gov/sites/default/files/documents/ 

e37945b7d88efb005839a876660a59fb/nh-staffingdisparities-brief.pdf. 

15Ochieng, N., Chidambaram, P., Musumeci, M. 

Nursing Facility Staffing Shortages During the 

COVID–19 Pandemic. Apr 04, 2022. Kaiser Family 

Foundation. Accessed at https://www.kff.org/ 

coronavirus-covid-19/issue-brief/nursing-facilitystaffing-shortages-during-the-covid-19-pandemic/. 

16Refer, for example, to a report from the Kaiser 

Family Foundation indicating that as of March 20, 

2022, 28% of nursing facilities reported a staffing 

shortage, as reported in Ochieng, N., Chidambaram, 

P., Musumeci, M. Nursing Facility Staffing 

Shortages During the COVID–19 Pandemic. Apr 04, 

2022. Kaiser Family Foundation. Accessed at 

https://www.kff.org/coronavirus-covid-19/issuebrief/nursing-facility-staffing-shortages-during-thecovid-19-pandemic. 

17https://data.bls.gov/timeseries/ 

CES6562300001?amp%253bdata

_tool=XGtable&output_view=

data&include_graphs=true. 

18Campbell, S., A. Del Rio Drake, R. Espinoza, K. 

Scales. 2021. Caring for the future: The power and 

potential of America’s direct care workforce. Bronx, 

NY: PHI http://phinational.org/wp-content/ 

uploads/2021/01/Caring-for-the-Future-2021- 

PHI.pdf. 

19Centers for Medicare & Medicaid Services. 

November 2020. Long-Term Services and Supports 

Rebalancing Toolkit. Accessed at https://

www.medicaid.gov/medicaid/long-term-servicessupports/downloads/ltss-rebalancing-toolkit.pdf. 

20Office of Inspector General (OIG), Some 

Nursing Homes’ Reported Staffing Levels in 2018 

Raise Concerns; Consumer Transparency Could Be 

Increased, OEI–04–18–00451, August 2020. https:// 

oig.hhs.gov/oei/reports/oei-04-18-00450.asp. 

Additionally, as a part of the FY 2023 

Skilled Nursing Facility Prospective 

Payment System Proposed Rule Request 

for Information (FY 2023 SNF PPS RFI) 

discussed later in this proposed rule, 

commenters provided examples of 

ongoing quality and safety concerns 

within understaffed LTC facilities. 

These included, but are not limited to, 

residents going entire shifts without 

receiving toileting or days without 

bathing assistance, increases in falls, 

residents not receiving basic feeding or 

changing services, and even abuse in 

cases where no one was watching. The 

2022 Nursing Home Staffing Study (also 

discussed later in this proposed rule) 

corroborated these comments and 

identified that basic care tasks, such as 

bathing, toileting, and mobility 

assistance, are often delayed when LTC 

facilities are understaffed. Interviews 

with various nurse staff highlighted 

ongoing concerns that care is often 

rushed, including for high-acuity 

residents, which can often lead to errors 

or safety issues. 

The COVID–19 Public Health 

Emergency (PHE) highlighted and 

exacerbated the long-standing concerns 

with inadequate staffing in LTC 

facilities. However, the COVID–19 PHE 

also yielded evidence that appropriate 

staffing made a difference as a part of 

the overall response to the COVID–19 

PHE in LTC facilities. The Centers for 

Disease Control and Prevention (CDC) 

noted that nursing home residents were 

at high risk for infection, serious illness, 

and death from the COVID–19 infection 

and Medicare beneficiaries were 

disproportionately impacted by the 

COVID–19 infection, with 76 percent of 

COVID–19 related deaths attributed to 

the people aged 65 years and older by 

the end of 2021.9 One study looking at 

4,254 LTC facilities across eight States 

found that there were fewer COVID–19 

cases in LTC facilities with four or five 

stars for nurse staffing in the Five Star 

Quality Rating System than in 

counterpart facilities with one to three 

stars for staffing.10 These findings 

suggest that LTC facilities with low 

nurse staffing levels may have been 

more susceptible to the spread of the 

COVID–19 infection. Findings from a 

recent 2020 study involving all 215 

nursing homes in Connecticut revealed 

that a 20-minute increase in RN time 

spent providing direct care to residents 

was associated with 22 percent fewer 

confirmed cases of COVID–19 and 26 

percent fewer COVID–19 related 

deaths.11 These findings suggest that 

there is a positive relationship between 

the hours of direct care that RNs provide 

and infection transmission in LTC 

facilities. 

Workforce challenges have 

contributed to understaffing and nurse 

burnout. The lack of adequate staffing 

impedes staff members’ ability to devote 

adequate time and attention to each 

resident. One study looked at the impact 

of nurse burnout on organization and 

position turnover. Findings indicated 

that 54 percent of the nurses sampled 

suffered from moderate burnout and the 

impact of burnout on organizational 

turnover was significant.12 While 

workforce challenges have existed for 

years, and have many contributing 

factors, interested parties have reported 

that the COVID–19 PHE exacerbated the 

problem as many long-term care 

facilities experienced high worker 

turnover. Potential factors contributing 

to this turnover include higher rates of 

worker reported-stress; an inability of 

some workers to return to their 

positions held prior to the pandemic 

(for instance, due to difficulty accessing 

child care or concerns about contracting 

the COVID–19 infection for people with 

higher risk of severe illness); high rates 

of mortality among long-term- care 

workers; and lower pay and job quality 

in long-term care settings relative to 

others, such as more competitive wage 

increases in retail and other industry 

jobs that tend to draw from the same 

pool of workers.13 14 15 Although the 

COVID–19 PHE has officially ended, the 

long-term care nursing workforce has 

been slower to recover than the nursing 

workforce in other healthcare settings, 

although it has steadily increased over 

the past year and a half.16 17 Demand for 

direct care workers is also expected to 

continue rising due to the growing 

needs of the aging population.18 19

The studies discussed in this section, 

corroborated by public comment 

submissions, input provided through 

listening sessions, and the 2022 Nursing 

Home Staffing Study, demonstrate the 

consequences of understaffing on 

resident health and safety. Yet, ongoing 

insufficient staffing as well as the 

widespread variability in existing 

minimum staffing standards across the 

United States (for example, 38 States 

and the District of Columbia have 

minimum nursing staffing standards; 

however, there are significant variations 

in their requirements) highlights the 

need for national minimum staffing 

standards for direct care in LTC 

facilities. 

Chronic understaffing continues in 

LTC facilities, and evidence 

demonstrates the benefits of increased 

nurse staffing in these facilities. For 

example, a report by the Office of the 

Inspector General (OIG) highlighted that 

in 2018, roughly 7 percent of nursing 

homes failed to provide 8 hours per day 

of RN staffing on at least 30 total days 

during the year.20 Some studies have 

demonstrated that increased staffing 

levels were specifically beneficial to 

vulnerable subpopulations in nursing 

homes, such as residents with dementia 

or Alzheimer’s disease. One cross 

sectional study of long-stay residents 

with Alzheimer’s disease and related 

dementias found that residents in 


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Federal Register / Vol. 88, No. 171 / Wednesday, September 6, 2023 / Proposed Rules 61357 

21 Jessica Orth, Yue Li, Adam Simning, Sheryl 

Zimmerman, Helena Temkin-Greener, End-of-Life 

Care among Nursing Home Residents with 

Dementia Varies by Nursing Home and Market 

Characteristics Journal of the American Medical 

Directors Association, Volume 22, Issue 2, 2021, 

Pages 320–328.e4, ISSN 1525–8610, https://doi.org/ 

10.1016/j.jamda.2020.06.021. 

22https://www.ncbi.nlm.nih.gov/pmc/articles/ 

PMC3805666/. 

23https://www.ncbi.nlm.nih.gov/pmc/articles/ 

PMC4108174/. 

24https://onlinelibrary.wiley.com/doi/epdf/ 

10.1111/1475-6773.12079. 

25https://www.jamda.com/article/S1525- 

8610(21)00243-7/fulltext. 

26https://www.healthaffairs.org/doi/full/10.1377/ 

hlthaff.2015.0094. 

27Mor, Vincent et al. ‘‘Driven to tiers: 

socioeconomic and racial disparities in the quality 

of nursing home care.’’ The Milbank quarterly vol. 

82,2 (2004): 227–56. doi:10.1111/j.0887– 

378X.2004.00309.x. 

28https://www.healthaffairs.org/doi/full/10.1377/ 

hlthaff.2015.0094. 

29Abt Associates. (2022). Nursing Home Staffing 

Study Comprehensive report. Report prepared for 

the Centers for Medicare & Medicaid Services. 

https://edit.cms.gov/files/document/nursing-homestaffing-study-final-report-appendix-june-2023.pdf. 

30Abt Associates. (2022). Nursing Home Staffing 

Study Comprehensive report. Report prepared for 

the Centers for Medicare & Medicaid Services. 

https://edit.cms.gov/files/document/nursing-homestaffing-study-final-report-appendix-june-2023.pdf. 

31Abt Associates. (2022). Nursing Home Staffing 

Study Comprehensive report. Report prepared for 

the Centers for Medicare & Medicaid Services. 

https://edit.cms.gov/files/document/nursing-homestaffing-study-final-report-appendix-june-2023.pdf. 32https://www.whitehouse.gov/briefing-room/ 

statements-releases/2022/02/28/fact-sheetprotecting-seniors-and-people-with-disabilities-byimproving-safety-and-quality-of-care-in-the-nationsnursing-homes/. 

nursing homes that had higher licensed 

nurse staffing levels had better end-oflife care and were less likely to 

experience potentially avoidable 

hospitalizations.21 Yet, the literature 

evidence suggests that staffing levels 

within facilities across the United States 

vary considerably, with less staffed 

facilities more likely to be for—profit, 

larger, rural, and have a higher share of 

Medicaid residents. 

Finally, multiple studies have shown 

that nursing home quality is generally 

lower in LTC facilities that serve high 

proportions of minority residents.22 23 24

Facilities that have a higher proportion 

of minority residents tend to have 

limited clinical and financial resources, 

low nurse staffing levels, and a high 

number of care deficiency citations.25 26

Furthermore, disparities in safety and 

quality care exist between LTC facilities 

with a high number of Medicaid 

residents and LTC facilities that have a 

high number of Medicare residents.27

These disparities can contribute to 

differences in quality across facilities’ 

sites.28

As such, we believe that national 

minimum staffing standards in LTC 

facilities and the adoption of a 24/7 RN 

and enhanced facility assessment 

requirements (as discussed later in this 

proposed rule), will help to advance 

equitable, safe, and quality care for all 

residents. Specifically, we propose 

individual minimum nurse staffing 

standards of 0.55 hours per resident day 

(HPRD) for RNs and 2.45 HPRD for NAs, 

that were developed using case-mix 

adjusted data sources. There were 

several considerations that helped us 

arrive at these proposed standards 

(discussed in detail later in this 

proposed rule). First, the evidence and 

findings from the 2022 Nursing Home 

Staffing Study demonstrated that there 

was a statistically significant difference 

in safety and quality care at 0.45 HPRD 

for RNs and higher including 0.55 

HPRD; there was a statistically 

significant difference in safety and 

quality care at 2.45 HPRD and higher for 

NAs. Second, we evaluated existing 

State requirements and note that the 

proposed RN requirement of 0.55 HPRD 

is higher than every State and only 

lower than the District of Columbia (DC) 

based on September 2022 data. Third, 

we aimed to strike an appropriate 

balance between cost and benefit that 

would yield the strongest improvements 

in quality and safety for residents. We 

are not proposing minimum staffing 

standards based on HPRD for licensed 

nurses, that is, RNs plus LPN/LVNs, nor 

for total nurse staffing, that is, RNs, 

LPN/LVNs, and NAs because of 

evidence in the literature described 

below. 

This proposed policy is based on 

statistical evidence from clinical 

settings which suggests that more 

positive clinical outcomes are 

associated with increasing the number 

of RNs and NAs. We are not setting a 

minimum staffing standard for LPN/ 

LVNs. In addition, as noted in the next 

section, it has been reported in the 

literature that LPN/LVNs may find 

themselves practicing outside their 

scope of practice when there is not 

sufficient RN staffing in a facility to 

provide supervision. This is concerning 

because LPN/LVNs require an RN or a 

physician’s supervision to practice. 

Furthermore, total licensed nurse 

staffing standards may ensure adequate 

levels of licensed nurse staffing and 

allow nursing homes the flexibility to 

substitute nurse type for example LPN/ 

LVNs for RNs, or NAs for LPN/LVNs, 

but may result in compromising the 

safety and quality of care. Multiple 

studies have found no evidence of a 

consistent relationship of quality and 

safety with LPN staffing.29 First, 

literature evidence suggests that there is 

a negative correlation between LPN and 

RN staffing, indicating that nursing 

homes with higher LPN staffing levels 

tend to have lower RN staffing levels.30

Second, the 2022 Nursing Home Staffing 

Study did not demonstrate an 

association between LPN/LVNs’ HPRD, 

at any level, and safe and quality care.31

Many studies indicate that consistent, 

adequate nurse staffing is correlated 

with resident health and safety, but we 

seek additional information to make 

fully informed policy decisions. We 

welcome input from interested parties 

on the considerations and proposals 

discussed in this rule, and other 

comments that may be relevant. We 

encourage commenters to submit 

evidence and data to support any 

recommendations to the extent possible. 

We continue to seek additional 

information that supports our efforts for 

improving the safety and quality of care 

for residents within LTC facilities, 

including feedback on how to improve 

care transitions and discharge planning, 

such as information about and 

assistance with programs that assist 

with community placements. 

We are soliciting comments and 

recommendations in this area and have 

also included specific information 

requests that are embedded throughout 

this rule regarding certain proposals. We 

seek this information in anticipation 

that additional comments and 

recommendations will assist us in 

ensuring that we finalize appropriate 

minimum staffing standards to ensure 

the health and safety of residents and 

provide staff the support they need to 

care for residents while also considering 

the limited resources including the local 

supply of RNs and NAs, that may exist 

as the long-term care sector recovers 

from the COVID–19 PHE and an 

increased demand due to a growing 

older population. 

3. CMS Actions and Key Considerations 

To Inform Mandatory Minimum Staffing 

Standards 

In February 2022, President Biden 

announced a comprehensive set of 

reforms aimed at improving the safety 

and quality of care within the nation’s 

nursing homes. One key initiative 

within the Biden-Harris 

Administration’s strategy is to establish 

a minimum nursing home staffing 

requirement for LTC facilities 

participating in Medicare and 

Medicaid.32 Establishing minimum 

staffing standards improves the 

likelihood that all nursing home 

residents are provided safe, high-quality 


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61358 Federal Register / Vol. 88, No. 171 / Wednesday, September 6, 2023 / Proposed Rules 

33Medicare Program; Prospective Payment 

System and Consolidated Billing for Skilled 

Nursing Facilities; Updates to the Quality Reporting 

Program and Value-Based Purchasing Program for 

Federal Fiscal Year 2023; Request for Information 

on Revising the Requirements for Long-Term Care 

Facilities To Establish Mandatory Minimum 

Staffing Levels. A Proposed Rule by the Centers for 

Medicare & Medicaid Services on 04/15/2022 

https://www.federalregister.gov/documents/2022/ 

04/15/2022-07906/medicare-program-prospectivepayment-system-and-consolidated-billing-forskilled-nursing-facilities. 

34Office of Inspector General Data Brief (August, 

2020) Some Nursing Homes’ Reported Staffing 

Levels in 2018 Raise Concerns; Consumer 

Transparency Could Be Increased. OEI–04–18– 

00450. https://oig.hhs.gov/oei/reports/OEI-04-18- 

00450.pdf. 

care, and that workers have the support 

they need to provide high-quality care. 

To help inform our efforts in 

establishing consistent and broadly 

applicable national minimum staffing 

standards, we launched a multi-faceted 

approach aimed at determining the 

minimum level and type of staffing 

needed to enable safe and quality care 

in LTC facilities. This effort included 

issuing the FY2023 SNF PPS RFI,33

hosting listening sessions with various 

interested parties, and conducting a 

2022 Nursing Home Staffing Study, 

which builds on existing evidence and 

several research studies using multiple 

data sources. In addition to launching 

our multi-faceted approach, we 

considered how any potential minimum 

staffing standards affect other CMS 

programs and/or initiatives as well as 

the enforceability of such standards. 

Our strategic approach and 

considerations are discussed later in 

this section. 

a. Request for Information in the FY

2023 Skilled Nursing Facility

Prospective Payment System Proposed

Rule (FY 2023 SNF PPS RFI)

We published the FY 2023 SNF PPS 

RFI in April 2022, soliciting public 

comments on minimum staffing 

standards. In response to the FY 2023 

SNF PPS RFI, we received over 3,000 

comments from a variety of parties 

interested in addressing LTC facilities’ 

issues including advocacy groups, longterm care ombudsmen, industry 

associations (providers), labor unions 

and organizations, nursing home 

residents, staff and administrators, 

industry experts, researchers, family 

members, and caregivers of residents in 

LTC facilities. 

Notably, industry associations and 

resident advocates expressed divergent 

views on the establishment of minimum 

staffing standards. Resident advocacy 

groups and family members of residents 

were strongly supportive of establishing 

minimum staffing standards, while 

industry and provider groups expressed 

significant concern and opposition to 

such standards. 

Commenters supporting the 

establishment of minimum staffing 

standards voiced safety concerns 

regarding residents not receiving 

adequate care due to chronic 

understaffing in facilities. For example, 

residents going entire shifts without 

receiving toileting assistance, which can 

lead to an increase in falls or the 

development or worsening of pressure 

ulcers. Commenters noted that NAs 

barely have time to get each resident 

dressed, fed, and bathed; that residents 

lie for hours in wet and soiled diapers; 

that residents who need help to eat 

struggle to feed themselves; and that 

residents suffer abuse from staff and 

other residents because no one is 

watching. Commenters also shared 

stories of residents wearing the same 

outfit for a week without a change of 

clothing or a shower. Commenters 

highlighted the contribution of facility 

staff and attributed the lack of quality 

care to insufficient staffing levels. 

Commenters also offered 

recommendations for implementing 

minimum staffing standards including 

staffing with a RN on every shift. Some 

commenters suggested that CMS focus 

on implementing an acuity (that is, the 

medical complexity and needs of a 

resident) staffing model per shift as part 

of any minimum staffing standards. 

Others recommended that minimum 

staffing standards be established for 

residents with the lowest care needs, 

assessed using the Minimum Data Set 

(MDS) 3.0 assessment forms, citing 

concerns that acuity-based minimum 

standards will be more susceptible to 

gaming around composition of the 

patient population (that is, avoiding 

taking on residents with more complex 

medical needs). 

Concerns raised by the local 

ombudsmen in the 2020 OIG Report on 

staffing levels echoed those raised by 

commenters. Some of the concerns 

identified in the OIG Report as a result 

of understaffing include residents’ call 

lights going unanswered, medication 

errors, untreated wounds, and 

inadequate bathing, including residents 

going a week without a shower. The 

ombudsmen also focused on problems 

related to weekend staffing below 

required levels, resulting in resident 

falls and altercations between residents; 

the ombudsmen attributed such 

outcomes to facilities’ inadequate 

leadership, as well as insufficient 

numbers of NAs.34 This information 

supports what was shared with us 

during the listening sessions as well as 

during the public comment period on 

the FY 2023 SNF PPS RFI. 

Commenters also provided 

information on several resident and 

facility factors for consideration when 

assessing a facility’s ability to meet any 

mandated staffing standards, including 

whether the facility has a high Medicaid 

census, high bed count, for-profit 

ownership, high SNF competition 

within the same county, high 

community poverty rates, low Medicare 

census, and for staffing, availability of 

RNs specifically. Other commenters 

stated that resident acuity should be a 

primary determinant in establishing 

minimum staffing standards, noting that 

CMS pays nursing homes based on 

resident acuity level. 

We also received comments on factors 

impacting facilities’ ability to recruit 

and retain staff, with most commenters 

in support of creating avenues for 

competitive wages for nursing home 

staff to address issues of recruitment 

and retention. Other commenters, 

however, suggested that year-over-year 

reductions in skilled nursing facility 

payments complicate facilities’ ability to 

increase staff wages and benefits. 

Finally, we received differing 

comments on the study design, 

payment, and cost impacts of 

establishing minimum staffing 

standards. Some commenters indicated 

that there is variability in Medicaid 

labor reimbursement amounts and many 

States’ Medicaid rates do not keep up 

with rising labor costs. Others, however, 

noted that most facilities have adequate 

resources to increase their staffing levels 

without additional Medicaid resources, 

and cited a recent study that suggests 

that most major publicly traded nursing 

home companies were highly profitable, 

even during the COVID–19 PHE. 

Commenters provided robust feedback 

on the study design and method for 

implementing nurse staffing standards, 

while others noted that resident acuity 

could change on a daily basis and 

recommended that CMS establish 

benchmarks rather than absolute values 

in staffing standards. Other commenters 

recommended using both minimum 

nurse HPRD and nurse to resident 

ratios. 

Additionally, we note that several 

members of Congress have provided 

input regarding the establishment of 

minimum staffing standards. While 

some Members of Congress have 

expressed concern that requiring 

minimum staffing standards could 

create access issues for rural 

communities, other Members of 

Congress have expressed support for 

establishing minimum staffing 


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Federal Register / Vol. 88, No. 171 / Wednesday, September 6, 2023 / Proposed Rules 61359 

35Sen Tester, Nursing Home Staffing Mandate, 

2023; https://www.tester.senate.gov/wp-content/ 

uploads/1-20-23-Nursing-Home-Staffing-MandateLetter-FINAL.pdf; Sen Casey, Wyden, et al, Nursing 

Home Staffing Mandate, 2023; https://

www.aging.senate.gov/imo/media/doc/letter_to_

cms_re_regulations_to_establish_minimum_

staffing_levels_in_nursing_homes.pdf; Doggett, 

Schakowsky Lead Effort Pressing for Strong Nursing 

Home Staffing Standards | Congressman Lloyd 

Doggett (house.gov), https://doggett.house.gov/ 

media/press-releases/doggett-schakowsky-leadeffort-pressing-strong-nursing-home-staffingstandards. 

36Abt Associates. (2022). Nursing Home Staffing 

Study Comprehensive report. Report prepared for 

the Centers for Medicare & Medicaid Services. 

https://edit.cms.gov/files/document/nursing-homestaffing-study-final-report-appendix-june-2023.pdf. 

37Appropriateness of Minimum Nurse Staffing 

Ratios in Nursing Homes (2001) https://

www.justice.gov/sites/default/files/elderjustice/ 

legacy/2015/07/12/Appropriateness_of_Minimum_

Nurse_Staffing_Ratios_in_Nursing_Homes.pdf. 

38Five care processes were the following: (1) 

dressing/grooming; (2) exercise; (3) feeding 

assistance; (4) changing and repositioning; and (5) 

providing toileting assistance. 

36Payment and Access Commission (MACPAC). 

(2022a). Medicaid and CHIP Payment and Access 

Commission (MACPAC). (2022a). Compendium: 

State policies related to nursing facility staffing. 

https://www.macpac.gov/publication/statepoliciesrelated-tonursing-facility-staffing/. 

39Consumer Voice (The National Consumer 

Voice for Quality Long-Term Care) (2021). State 

nursing home staffing standards: Summary report 

https://theconsumervoice.org/issues/otherissuesandresources/staffing. 

40Akinci, Fevzi, and Diane Krolikowski. ‘‘Nurse 

staffing levels and quality of care in Northeastern 

Pennsylvania nursing homes.’’ Applied nursing 

research: ANR vol. 18,3 (2005): 130–7. doi:10.1016/ 

j.apnr.2004.08.004. 

41 Yang, Bo Kyum et al. ‘‘Nurse Staffing and Skill 

Mix Patterns in Relation to Resident Care Outcomes 

in US Nursing Homes.’’ Journal of the American 

Medical Directors Association vol. 22,5 (2021): 

1081–1087.e1. doi:10.1016/j.jamda.2020.09.009. 

42Spilsbury, Karen et al. ‘‘The relationship 

between Nurse staffing and quality of care in 

nursing homes: a systematic review.’’ International 

journal of nursing studies vol. 48,6 (2011): 732–50. 

doi:10.1016/j.ijnurstu.2011.02.014. 

standards for LTC facilities.35 We 

appreciate the thoughtful feedback from 

commenters and have considered the 

varying feedback that we received to 

inform the staffing study design and 

proposal for minimum staffing 

standards discussed in this rule. 

b. The 2022 Nursing Home Staffing 

Study 36

The CMS commissioned a nursing 

home staffing study in 2001, entitled 

‘‘Appropriateness of Minimum Nurse 

Staffing Ratios in Nursing Homes’’,37

commonly referred to as the 2001 CMS 

Staffing Study, that focused on two 

empirical analyses related to the link 

between staffing and quality: (1) 

whether there is a nurse staffing ratio 

above which no additional 

improvements in quality are observed, 

and (2) what nurse staffing thresholds 

are minimally necessary to provide care 

processes consistent with the Omnibus 

Budget Reconciliation Act (OBRA) of 

1987 optimal standards and related 

regulations. 

The study findings identified nursing 

home staffing thresholds beyond which 

additional staff did not lead to 

significant further improvements in 

care. These staffing levels, expressed in 

HPRD, varied by outcomes—short-stay 

or -long-stay- quality measures, by nurse 

staff type, and by level of nurse staffing. 

Depending on the nature of the nursing 

home population (case-mix), these 

thresholds ranged between: 0.55 to 0.75 

HPRD for RNs; 1.15 to 1.30 HPRD for 

licensed nurses (RNs and LPN/LVNs); 

and 2.4 to 2.8 HPRD for NAs. The 2001 

study also reported that ‘‘[m]inimum 

staffing levels at any level up to these 

thresholds are associated with 

incremental quality improvements, with 

the greatest benefits as these thresholds 

are approached.’’ In other words, 4.1 

HPRD was the highest HPRD of 

combined NAs and licensed staff (RNs/ 

LPN/LVN) for long-stay measures 

beyond which no further improvement 

in safety and quality was observed. The 

4.1 HPRD drawn from the 2001 Study is 

commonly misinterpreted as the 

minimum total nurse staffing that is 

needed to protect resident health and 

safety. 

The CMS also commissioned a 

simulation analysis (‘‘time motion 

study’’) on NA time expended for 

providing five key care processes,38 in 

addition to routine care, to determine an 

HPRD level for NAs to provide optimal 

nursing care. The study findings suggest 

that the NA HPRD level ranged between 

2.8 (low workload facility) and 3.2 

HPRD (high workload facility) for NAs 

only, depending on the NA workload 

requirements which was based on the 

nursing home resident population. 

Given the growing body of evidence 

demonstrating the importance of staffing 

to resident health and safety, the 

continued insufficient staffing, and 

variability in nurse-to-resident ratios 

across States, creating a consistent floor 

will reduce the risk of residents 

receiving unsafe and low-quality care. 

In 2022, given the age of the 2001 study 

and the persistent chronic nurse 

understaffing linked to poor safety and 

quality care, which was exacerbated by 

the COVID–19 PHE, we commissioned a 

new nursing home study that focused 

on a non-empirical analysis and four 

empirical analyses to develop minimum 

staffing standards using case-mix 

adjusted data sources, as well as staffing 

types and levels for improving safety 

and quality care in nursing homes. 

These non-empirical and empirical 

analyses, also known as study tasks, 

included a systematic literature review, 

qualitative analysis of data collected 

using interviews and surveys conducted 

during scheduled site visits, an 

observation study (‘‘similar to the time 

motion study’’) followed by simulation 

modeling analysis for licensed nurses 

(RNs and LPN/LVNs), quantitative 

analyses which included descriptive 

and impact analyses, and cost analyses. 

The key takeaways from the 

multifaceted approach are: 

• Recent literature as well as 

testimonials from nursing home staff, 

residents, and family members 

underscore the relationship between 

staffing and care quality; however, there 

is no clear, consistent, and universal 

methodology for setting specific 

minimum staffing standards, as 

evidenced by the varying current 

standards across certain States. 

• Nurse staffing levels vary 

considerably nationwide by LTC 

facilities’ characteristics, such as 

location, size, and profit status and 

States. Thirty-eight States and the 

District of Columbia have minimum 

staffing standards, which vary 

considerably. We note that the proposed 

RN requirement of 0.55 HPRD is higher 

than every State, and only lower than 

the District of Columbia (DC) based on 

data from September 2022. Our 

proposed NA requirement of 2.45 HPRD 

is higher than all States and DC, based 

on data reported in September 2022.36 39

To reiterate, LTC facilities would be 

required to meet both the proposed 0.55 

HPRD for RNs and the 2.45 HPRD for 

NAs. 

• The relationship between staffing 

and quality of care and safety, varies by 

staff type and level as follows: 

++ RN hours per resident day of 0.45 

or more have a strong association with 

safety and quality care. 

++ NA hours per resident day of 2.45 

or more also have a strong association 

with safety and quality care. 

++ LPN/LVN hours per resident day, 

at any level, do not have any association 

with safety and quality of care.40 41 42

• Increasing nursing staffing level is 

associated with costs, namely financial 

costs to LTC facilities, as well as 

benefits, including enhanced safety and 

quality to varying degrees. 

In brief, the 2022 Nursing Home 

Staffing Study was conducted as a 

general framework to survey different 

sources of information and to conduct 

different types of analyses to help 

inform the minimum staffing decision 

process, while considering the potential 


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43Abt Associates. (2022). Nursing Home Staffing 

Study Comprehensive report. Report prepared for 

the Centers for Medicare & Medicaid Services. https://edit.cms.gov/files/document/nursing-homestaffing-study-final-report-appendix-june-2023.pdf. 

cost and benefit. The study 43 was 

unable to examine the relationship 

between staffing levels by shift and 

quality/patient safety because the PBJ 

System does not include information on 

staffing by shift. In addition, there was 

limited information on non-nurse 

staffing, so the study team was unable 

to examine minimum staffing standards 

for non-nurse staff. 

Unlike the 2001 CMS Staffing Study, 

the 2022 Nursing Home Staffing Study 

was guided by a conceptual model (see 

Figure 1), that hypothesizes that 

administrative practices (for example, 

nurse staffing levels, staffing mix, care 

delivery model, and organizational 

environment) influence the quality and 

safety of care provided in a nursing 

home, which, in turn, influences 

nursing home residents’ outcomes (that 

is, clinical, safety, and disparity). 

Clinical outcomes were defined using 

Care Compare quality measures derived 

from the MDS and Medicare claims 

data. Patient safety was defined using 

measures from health inspection 

surveys. 

(1) Systematic Literature Review 

The overall goal of the systematic 

literature review was to summarize 

timely and current evidence of the 

relationship between minimum staffing 

standards in nursing homes and the 

safety and quality of care, as well as 

clarify the relative strengths and 

weaknesses of the available literature. In 

addition, the systematic literature 

review of existing peer-reviewed and 

‘‘gray literature’’ (that is, published 

outside the traditional research 

publications such as opinion pieces, 

advocacy materials, and nonstatistically rigorous research published 

by government agencies) which 

includes printed articles, for the initial 

period 2019–2022, and prior to 2019 if 

needed, focused on addressing the 

following questions: 

• What is the relationship between 

nurse staffing levels and safety and 

quality of care? What minimum staffing 

levels associated with safety and quality 

of care have been identified in previous 

studies, and what is the empirical basis 

for them? 

• What are the current State and 

Federal standards for staffing level/ 

types and outcomes in nursing homes 

for weekdays, weekends, and evenings? 

• What is the role of different nurse 

types (that is, RNs/LPN/LVNs/NAs) in 

ensuring safety and quality of nursing 

home care? 

• What are the costs associated with 

nurse staffing in nursing homes? What 

are the costs associated with 

implementing minimum nurse staffing 

standards and increasing nurse staffing 

levels/types? 

Most importantly, an increase in 

nurse staffing was associated with 

improved quality of care. In a 2021 

study, where interview data were 

examined, and multivariate analyses of 

resident outcomes were conducted, 

authors concluded that higher total 

nurse staffing had a significant 

correlation with a decreased number of 

pressure ulcers, an increase in influenza 

vaccination, an increase in pneumonia 

vaccination, and decreased number of 


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44Wagner, L.M., Katz, P., Karuza, J., Kwong, C., 

Sharp, L., & Spetz, J. (2021). Medical staffing 

organization and quality of care outcomes in postacute care settings. Gerontologist, 61(4),605–614. 

45 chrome-extension://

efaidnbmnnnibpcajpcglclefindmkaj/ https://

static1.squarespace.com/static/602ac1a3e

de5cc16ae72d619/t/6043c094b391303a2d1c1418/ 

1615052948879/OBRA87summary.pdf. 

46Abt Associates. (2022). Nursing Home Staffing 

Study Comprehensive report. Report prepared for 

the Centers for Medicare & Medicaid Services. 

https://edit.cms.gov/files/document/nursing-homestaffing-study-final-report-appendix-june-2023.pdf. 

47Chen, Min M, and David C Grabowski. 

‘‘Intended and unintended consequences of 

minimum staffing standards for nursing homes.’’ 

Health economics vol. 24,7 (2015): 822–39. 

doi:10.1002/hec.3063. 

48Bowblis, John R. ‘‘Staffing ratios and quality: an 

analysis of minimum direct care staffing 

requirements for nursing homes.’’ Health services 

research vol. 46,5 (2011): 1495–516. doi:10.1111/ 

j.1475–6773.2011.01274.x. 

49American Health Care Association (2012) LTC 

stats: Nursing facility operational characteristics 

report. Retrieved from http://www.ahcancal.org/ 

research_data/oscar_data/Nursing%

20Faciliry%20Operational%Characteristics/

LTC+STATS_PVNFOPERATIONS_2012Q4_

FINAL.pdf. 

50Siegel, Elena O et al. ‘‘Leadership in Nursing 

Homes: Directors of Nursing Aligning Practice With 

Regulations.’’ Journal of gerontological nursing vol. 

44,6 (2018): 10–14. doi:10.3928/00989134– 

20180322–03. 

51Corazzini, Kirsten N et al. ‘‘Licensed practical 

nurse scope of practice and quality of nursing home 

care.’’ Nursing research vol. 62,5 (2013): 315–24. 

doi:10.1097/NNR.0b013e31829eba00. 

52Corazzini, Kirsten N et al. ‘‘Licensed practical 

nurse scope of practice and quality of nursing home 

care.’’ Nursing research vol. 62,5 (2013): 315–24. 

doi:10.1097/NNR.0b013e31829eba00. 

53California Advocates for Nursing Home 

Reform, Center for Medicare Advocacy, Justice in 

Aging, Long Term Care Community Coalition, 

Michigan Elder Justice Initiative, and The National 

Consumer Voice for Quality Long-Term Care. 

(2021). Framework. for nursing home reform post 

COVID–19. https://theconsumervoice.org/uploads/ 

files/actionsand-newsupdates/Framework_and_

overview_FINAL.pdf. 

54National Academies of Sciences, Engineering, 

and Medicine.(2022).The national imperative to 

improve nursing home quality: Honoring our 

commitment to residents, families, and staff. The 

National Academies Press. https://doi.org/ 

10.17226/26526. 

55CLA (CliftonLarsonAllen, LLC). (2022). Staffing 

mandate analysis. In-depth analysis on minimum 

nurse staffing levels and local impact. American 

Health Care Association and the National Center for 

Assisted Living (AHCA/NCAL). https://

www.ahcancal.org/News-and-Communications/ 

Fact-Sheets/FactSheets/CLA-Staffing-MandateAnalysis.pdf. 

56Hawk, T., White, E.M., Bishnoi, C., Schwartz, 

L.B., Baier, R.R., & Gifford, D. R. (2022). Facility 

characteristics and costs associated with meeting 

proposed minimum staffing levels in skilled 

nursing facilities. Journal of the American Geriatrics 

Society, 70(4), 1198–1207. https://doi.org/10.1111/ 

jgs.17678. 

57https://abtimpact.com/mission-impact-2020/ 

ethics-and-governance/. 

outpatient emergency department 

visits.44

However, the OBRA of 1987,45 which 

amended sections 1819 and 1919 of the 

Act to mandate staffing standards in 

nursing homes, did not mandate 

specific numerical minimum nurse 

staffing standards. As such several 

States mandated variable staffing 

standards to help meet the standards in 

sections 1819 and 1919 of the Act. 

As stated in the 2022 Nursing Home 

Staffing Study report,46 which will be 

published concurrently with this 

proposed rule, studies found that States 

that established higher nurse staffing 

standards resulted in increased staffing 

within nursing homes, but the 

magnitude of this increase varied by the 

staff type. For example, authors found 

that when the States of California and 

Ohio required increased licensed nurse 

or total nurse staffing standards, this 

resulted in some actual increase in 

staffing levels. California required 

facilities to increase the hours for direct 

resident care per day from 3.0 to 3.2 and 

prohibited the previous practice of 

allowing RN or LPN hours to be counted 

twice, also known as ‘‘doubling’’. The 

rationale for doubling was to increase 

the number of licensed staff. Ohio law 

required facilities to increase total nurse 

staffing (RN, LPN/LVN, and NA) direct 

care hours from 1.6 to 2.75. Results 

showed that for both California and 

Ohio, nursing homes that ranked in the 

bottom quartile at baseline on total 

nurse staffing significantly increased 

their HPRDs for all three types of 

nursing staff (RN, LPN/LVN, and NA). 

However, there was a reduction in 

professional skill mix, meaning there 

were fewer RNs relative to other direct 

care staff, 71 percent of the increase in 

nursing staff represented an increase in 

NA hours.47

Another study, when controlling for 

changes in State minimum direct care 

staffing standards during the study 

period, in Arkansas, Delaware, Florida, 

and Ohio, found that nursing homes 

serving a higher share of Medicaid 

patients reported large increases in 

staffing, specifically RNs, in response to 

a one HPRD increase in total nurse 

staffing from a baseline of 2.0 HPRD 

requirement for total nurse staffing.48 In 

sum, studies found that nursing homes 

in States with higher minimum staffing 

standards employed more staff. 

Most LTC facilities typically have 

nurse teams providing care to residents 

with very few RNs (8 percent) making 

up the team, compared to other nurse 

team members, (that is, administrative 

RNs, LPN/LVNs and unlicensed 

assisting staff)49 50 which suggests that 

LPN/LVNs provide most of the clinical 

care with minimal supervision from 

RNs.51 Other study findings suggest that 

some Directors of nursing (DONs) view 

the roles of RNs and LPN/LVNs 

interchangeably despite the difference 

in educational preparation and scope of 

practice. Yet, study findings suggest that 

having more RNs in LTC facilities to 

provide clinical skills and supervision 

of LPNs positively influences LPNs 

contributions to improved quality 

care.52 In summary, the presence of 

more RNs on a team influences the 

quality of care provided. 

Based on gray literature, a coalition of 

resident nursing home advocates and 

the National Academies of Sciences, 

Engineering, and Medicine 

recommended RN coverage, with at 

least one RN, for 24 hours a day, 7 days 

a week, with additional RN coverage if 

needed, as part of the minimum staffing 

standards.53 54

Several costs for increasing nurse 

staffing were cited in the literature, we 

note that these costs differ from our 

estimated costs as set out in this 

proposed rule. For example, in one 

study, by trade groups representing the 

industry, 4.1 HPRD for total nurse 

staffing (that is, RNs, LPN/LVNs and 

NAs) was found to cost the long-term 

care industry more than $10 billion 

annually.55 Another study estimated 

that the additional staffing costs to meet 

the 4.1 HPRD for total nurse staffing as 

$7.25 billion.56 In summary, several 

studies found that higher levels of nurse 

staffing, including RNs, were associated 

with improved resident care outcomes 

and increased costs. 

(2) Qualitative Analysis 

Thirty-one nursing homes were 

selected for scheduled site visits in 14 

States, specifically California, Colorado, 

Florida, Illinois, Massachusetts, 

Maryland, Missouri, North Carolina, 

New York, Ohio, Pennsylvania, 

Virginia, Washington, and Wyoming. 

These site visits started in September 

2022, and ended in December 2022. 

nursing homes were selected to ensure 

a national representation by size, 

ownership type, geographic location, 

Medicaid population, and overall rating 

under the Five-Star Quality Rating 

System. Nursing homes voluntarily 

participated in these site visits and no 

incentives were offered. Site visit 

protocols and interview guides were 

reviewed and approved by Abt 

Associates Inc. Institutional Review 

Board.57 Site visits were conducted 

under the Nursing Home Reform Law in 

the Omnibus Budget Reconciliation Act 

of 1987 (OBRA ’87) (Pub. L. 100–203), 

which is exempt from the Paperwork 

Reduction Act (PRA). 

During site visits, interviews (n=361) 

were conducted with 76 nursing home 

leadership, 195 direct care staff 


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58 Kalish, B.J., & Williams, R.A. (2009). 

Development and psychometric testing of a tool to 

measure missed nursing care. The Journal of 

Nursing Administration, 39(5), 211–219. https://

doi.org/10.1097/nna.0b013e3181a23cf5. 

59Schnelle, J.F., Schroyer, L.D., Saraf, A.A., & 

Simmons, S.F. (2016). Determining nurse aide 

staffing requirements to provide care based on 

resident workload: A discrete event simulation 

model. Journal of the American Medical Directors 

Association, 17(11), 970–977. https://doi.org/ 

10.1016/j.jamda.2016.08.006. 

60Abt Associates. (2022). Nursing Home Staffing 

Study Comprehensive report. Report prepared for 

the Centers for Medicare & Medicaid Services. 

https://edit.cms.gov/files/document/nursing-homestaffing-study-final-report-appendix-june-2023.pdf. 

61Abt Associates. (2022). Nursing Home Staffing 

Study Comprehensive report. Report prepared for 

the Centers for Medicare & Medicaid Services. 

https://edit.cms.gov/files/document/nursing-homestaffing-study-final-report-appendix-june-2023.pdf. 

(including RNs, LPN/LVNs, and NAs), 

65 residents, and 25 family members to 

better understand the relationship 

between staffing levels, staffing mix 

(what types of staff are present), and 

resident outcomes and experiences (that 

is, clinical outcomes, safety, health 

disparities). Staff completed 168 Missed 

Nursing Care (MISSCARE) 58 surveys to 

determine any omitted or delayed care. 

Findings from data analyses of 

surveys and interviews highlighted that 

activities of daily living care tasks, 

including bathing, toileting, and 

mobility assistance, are the most 

frequently delayed tasks when shifts/ 

units are short staffed. Family members 

also reported that quality of life, quality 

of care, and resident safety are adversely 

affected when nursing homes are short 

staffed. Some staff stated that rushing 

through care due to having high-acuity 

residents, meaning that their condition 

is severe and imminently dangerous, or 

a high number of assigned residents led 

to medication errors and safety issues. 

For example, one nurse stated that being 

assigned 33 patients without any other 

staff is not safe. Respondents also noted 

that different staffing requirements for 

NAs and licensed nurses, among other 

factors, should be considered when 

developing minimum staffing standards. 

Nursing home staff respondents also 

suggested minimum staff-to-resident 

ratios. NA respondents proposed a ratio 

of 5 to 14 residents per NA, whereas 

RNs and LPN/LVNs suggested ratios 

from 8 to 25 residents per licensed 

nurse (RN and LPN/LVNs). Respondents 

worked across a variety of shifts, units, 

and resident types (for example, skilled 

nursing/rehabilitation, long-term care, 

total care, dementia care, and behavioral 

issues), so the acuity of residents they 

typically supported varied as did the 

ratios they proposed. 

(3) Observation Study/Simulation 

Modeling 

Twenty LTC facilities were selected 

based on a convenience sampling 

method for the observation study. Time 

data of 8,249 unique care tasks were 

collected via direct observations of 

licensed nursing staff (that is, RN and 

LPN/LVNs) providing common clinical 

tasks including medication pass, 

resident assessment, wound care, and 

catheter/device care. Previous 

simulation modeling research focused 

on NAs providing non-clinical tasks 

specifically, activities of daily living 

(ADL) tasks,59 but not on clinical tasks. 

Thus, this simulation study was aimed 

at addressing this gap in knowledge and 

focused exclusively on specific clinical 

tasks provided by licensed nurses. 

These data were used to develop a 

simulation model to examine the impact 

of different levels of licensed nurses and 

resident acuity, on the quality and 

timeliness of providing certain care 

tasks defined as delayed and omitted 

care respectively. This simulation 

model is important to add to existing 

literature on delayed care and help the 

staffing study reflect not just what 

staffing levels exist currently as a 

descriptive model, but also what staffing 

levels are needed for safe, quality care 

for residents at varying acuity levels for 

the studied clinical tasks. 

As stated in the 2022 Nursing Home 

Staffing Study report,60 which will be 

published concurrently with this 

proposed rule, simulation findings 

suggest that a staffing level of four 

licensed nurses (that is, a combination 

of RNs and LPN/LVNs) in this setting, 

would reduce the amount of delayed or 

omitted care for the clinical tasks 

studied to a rate below 5 percent in a 

70-resident nursing home. Five licensed 

nurses would virtually eliminate 

delayed or omitted care in this setting. 

The 4 to 5 licensed nurses correspond 

to approximately 1.4 to 1.7 HPRD at 

such a nursing home. However, the 

study has several limitations. One is 

that these study observations did not 

differentiate between RN and LPN/LVN 

tasks, so we are unable to separate 

estimates of potential delayed or 

omitted care for an RN versus an LPN. 

Most importantly, simulation studies 

did not incorporate any patient-level 

data or facility-level data from site 

observations. Instead, simulations 

estimated patient acuity using MDS 

data. Therefore, patient acuity in 

simulations were based on populationlevel estimates, rather than estimates at 

the nursing-home level or the individual 

patient level. 

Because the simulation did not use 

actual patient- or facility-level data, 

facilities specializing in treatment of 

high or low acuity residents were not 

properly represented in the staffing 

simulation models. For example, 

different staffing needs may arise in 

facilities specializing in care for persons 

experiencing disabilities resulting in 

paraplegia/quadriplegia, or in facilities 

specializing in persons experiencing 

advanced cognitive impairment. 

Analysis of specialized care facilities 

was outside of the scope of this 

simulation research. Furthermore, other 

existing simulation research focused on 

NAs only, so NAs were considered as 

part of the evidence base for this work 

but were not included in the analysis. 

(4) Quantitative Analysis 

Secondary Analysis: The quantitative 

analysis used secondary data of nursing 

homes (n = 14,529) from the CMS’ PBJ 

System, the MDS 3.0, Medicare cost 

reports, and health inspection surveys 

to establish minimum staffing standards 

for different types of nurse staff (that is, 

total nurse staffing and individual RNs, 

LVN/LPNs, and NAs) and for non-nurse 

staff (that is, social workers, feeding 

assistant, other activities staff, and 

physical therapy assistant among others) 

that is associated with an acceptable 

quality of care and safety in nursing 

homes. Quality was defined based on a 

total composite quality measure made 

up of Short-Stay Measures (that is, 

community discharge, hospital 

readmissions, emergency department 

visits, Functional improvement) and 

Long-Stay Measures (that is, activities of 

daily living decline, antipsychotic 

medication use, mobility decline, highrisk pressure ulcer, hospitalizations, and 

emergency department visits).61

Safety was measured based on the 

relative on-site health inspection 

performance of nursing homes within a 

State using surveys for the following 

deficiencies: Immediate jeopardy to 

resident health or safety; Actual harm 

that is not immediate jeopardy; No 

actual harm with potential for more 

than minimal harm that is not 

immediate jeopardy; and, No actual 

harm with potential for minimal harm. 

Similar to other CMS nursing home 

improvement quality initiatives such as 

Value Based Payment for nursing 

homes, acceptable quality and safety 

was defined using the 25th and 50th 

percentile cut-offs on the current 

distribution of the total quality measure 

(QM) score and within-State 

performance on health inspection 

survey data, based on the predicted 

probability of nursing homes exceeding 

the threshold across the full distribution 

of nurse staffing levels. Moreover, some 


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62Akinci, Fevzi, and Diane Krolikowski. ‘‘Nurse 

staffing levels and quality of care in Northeastern 

Pennsylvania nursing homes.’’ Applied nursing 

research: ANR vol. 18,3 (2005): 130–7. doi:10.1016/ 

j.apnr.2004.08.004. 

63 Yang, Bo Kyum et al. ‘‘Nurse Staffing and Skill 

Mix Patterns in Relation to Resident Care Outcomes 

in US Nursing Homes.’’ Journal of the American 

Medical Directors Association vol. 22,5 (2021): 

1081–1087.e1. doi:10.1016/j.jamda.2020.09.009. 

64Spilsbury, Karen et al. ‘‘The relationship 

between Nurse staffing and quality of care in 

nursing homes: a systematic review.’’ International 

journal of nursing studies vol. 48,6 (2011): 732–50. 

doi:10.1016/j.ijnurstu.2011.02.014. 

65Firnhaber, G.C., Roberson, D.W., & Kolasa, 

K.M. (2020). Nursing staff participation in end-oflife nutrition and hydration decision-making in a 

nursing home: A qualitative study. Journal of 

Advanced Nursing, 76(11), 305–3068.https://

doi.org/10.1111/jan.14491. 

66Abt Associates. (2022). Nursing Home Staffing 

Study Comprehensive report. Report prepared for 

the Centers for Medicare & Medicaid Services. 

https://edit.cms.gov/files/document/nursing-homestaffing-study-final-report-appendix-june-2023.pdf. 

nursing homes are staffed at levels that 

place their residents at substantially 

higher risk of poor quality (for example, 

being in the lowest quartile of QM score, 

defined as the 25th percentile cut off) 

and low safety (for example, lowest 

quartile of performance on health 

inspection survey, defined as the 25th 

percentile cut off). The PBJ System data 

for the fourth quarter of 2019 through 

the first quarter of 2022, for 14,688 

Medicare and/or Medicaid certified 

nursing homes in the United States were 

included in the analyses. 

Descriptive analyses examined HPRD 

for nurse and non-nurse staff in nursing 

homes (n=14,529) across all States. 

Regression modeling analyses 

controlled for case-mix adjusted data for 

nurse staffing (that is, RN, LPN/LVN, 

and NA), LTC facility ownership (for 

example, non-profit, Government), 

percent of Medicaid residents, hospitalbased facility, Continuing Care 

Retirement Community (CCRC) facility, 

rural location, number of certified beds 

(per 1-bed increase), and Special Focus 

Facility status. Using a correlational 

descriptive analysis, findings indicate 

that there is a consistent positive 

relationship between higher RN staffing 

and better performance, regardless of 

the measure (that is, total quality 

measure score or within-State health 

inspection score), the performance 

standard (that is, acceptable quality and 

safety at the 25th, or 50th percentile), or 

the case-mix adjusted RN staffing decile 

measured in HPRD. 

Among all nurse staffing types, RNs 

exhibit the strongest association with 

acceptable quality (p<.0001, significant 

at a = 0.05) and safety (pHowever, 

similar to previous analyses,62 63 64 this 

study found no relationship between 

LPN/LVNs HPRD levels and quality care 

and safety. This finding may be 

influenced by the LPN/LVN’s role 65 and 

the fact that nursing homes with higher 

LPN/LVN staffing levels tend to have 

lower RN staffing levels.66 The volume 

and number of HPRD reported in PBJ 

System for non-nurse staff were very 

low, ranging from 0.00–0.11; as such 

were insufficient to examine further for 

establishing minimum non-nurse 

staffing standards. 

We considered findings from the 2022 

Nursing Home Staffing Study, 

specifically that there was no 

statistically significant difference in 

safety and quality care below 2.45 

HPRDs for NAs. In other words, staffing 

below 2.45 HPRD for NAs did not 

improve safety and quality care for LTC 

facility residents. Also, our proposed 

NA requirement of 2.45 HPRD which 

was developed using case-mix adjusted 

data sources, is higher than the 

minimum requirements in all States and 

DC, based on data reported in 

September 2022. 

We also considered findings from the 

2022 Nursing Home Staffing Study that 

there was no correlation between safety 

and quality care, and LVN/LPNs. We 

examined findings from the 2022 

Nursing Home Staffing Study, that there 

was a statistically significant difference 

in safety and quality care at 0.45 HPRD 

for RNs and higher. We also factored the 

minimum RN requirements in all States 

and the District of Columbia, which 

with the exception of two States, all had 

less than the 0.45 HPRD for RNs, which 

was the lowest level presented in the 

2022 Nursing Home Staffing Study. 

However, current State minimum RN 

staffing levels are associated with 

increased risk for unsafe and poor 

quality care. Therefore, we are 

proposing the level of 0.55 HPRD for 

RNs, which was developed based on 

case-mix adjusted data sources and the 

2022 Nursing Home Staffing Study 

findings. In addition, 0.55 HPRD for 

RNs will result in a large majority (78 

percent) of LTC facilities increasing 

staffing to provide safe and quality care. 

CMS is also seeking comments on 

whether in addition to the 0.55 RN and 

2.45 NA HPRD standards, a minimum 

total nurse staffing standard, such as 

3.48 among other alternatives, discussed 

later in the rule, should also be 

required. 

Furthermore, we considered striking a 

balance between cost and benefit for 

LTC facilities, nursing staff, and 

residents, and the minimum number of 

HPRDs by staff type that will improve 

safety and quality care. Therefore, we 

proposed 0.55 and 2.45 HPRD for RNs 

and NAs, respectively, which were 

developed using case-mix adjusted data 

sources, because we believe that 

proposing lower staffing levels than 

current State requirements would be 

insufficient to meet the statutory goals 

of improving health and safety. 

Impact Analysis: The impact of State 

minimum staffing policies on nurse 

staffing, and safety and quality care in 

nursing homes during the recent 

COVID–19 PHE, can inform policy 

makers on potential outcomes to Federal 

minimum staffing standards. The study 

also provided analyses of the recently 

revised Massachusetts minimum 

staffing standards, in the wake of the 

COVID–19 PHE, making the findings the 

most timely and relevant of various 

State-level analyses. The researchers 

determined that the analysis of the 

Massachusetts staffing standard would 

be particularly informative given that 

the State increased its HPRD to a 

relatively high level and incorporated a 

Medicaid payment reduction of 2 

percent for noncompliant facilities. As 

such a quasi-experimental study was 

conducted to determine the impact of 

the Massachusetts minimum staffing 

standards on quality of care and safety 

in nursing homes. 

The Massachusetts nursing home 

minimum staffing standards requires 

3.58 HPRD for total nurse staffing (that 

is, RN, LPN, and NA), of which 0.508 

HPRD was for an RN, and provided for 

a financial penalty for noncompliance 

with the total nurse staffing standard. 

The study period was defined as 2015 

Q3 through 2022 Q2. The Massachusetts 

nursing home minimum staffing policy 

was effective January 1, 2021. Impact 

analysis of existing nursing homes 

(n=40) data from the PBJ System data 

(2015Q3–2022Q2) and Care Compare 

(quality measure and health inspection 

survey data) were used. The comparison 

group selected from the sample of 

national nursing homes (n=1,617) was 

constructed using a synthetic control 

approach. Synthetic control is a 

statistical method for creating a 

comparison group of nursing homes 

from a region that did not experience 

the same health policy intervention, but 

closely resembles the nursing home 

staffing level and trend in 

Massachusetts using weighted 

estimates. Difference-in-differences 

regression analyses were conducted by 

stratified nursing home Medicaid share 

and staffing level. Difference-indifferences regression is a statistical 

method for estimating the causal effect 

of the Massachusetts minimum staffing 

standards, when compared to a region 

that did not experience the same policy 

intervention. 


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67Abt Associates. (2022). Nursing Home Staffing 

Study Comprehensive report. Report prepared for 

the Centers for Medicare & Medicaid Services. 

https://edit.cms.gov/files/document/nursing-homestaffing-study-final-report-appendix-june-2023.pdf. 68https://www.cms.gov/nursing-homes. 

These regression models did not find 

a discernible impact on quality of care 

nor safety within the time period 

studied. They did, however, find an 

increase in total nurse staffing levels 

among low-staffed nursing homes with 

a high share of residents with Medicaid 

in Massachusetts. The observed staffing 

increase was significant for NAs 

(average treatment effect on the treated 

(ATT)=.179, p=0.03). The analysis thus 

demonstrates that nursing homes were 

able to expand staffing in response to 

the new requirement, notwithstanding 

workforce challenges since the 

pandemic. 

One limitation of the analysis was the 

small number of nursing homes 

included because the analysis focused 

on a subset of nursing homes with the 

strongest incentive to respond to the 

new policy, that is, those with high 

Medicaid resident shares (≥ 75th 

percentile) and initial staffing levels 

below the new Massachusetts minimum 

staffing requirement (HPRD ≤ 3.58 for 

total nurse staffing), resulting in 1,617 

out of 15,333 nursing homes nationwide for the control group, and 40 out 

of 373 nursing homes in Massachusetts. 

Also, about one third of the nursing 

homes did not complete health 

inspection surveys due to the COVID–19 

PHE, so there was a substantial amount 

of missing data for examining the safety 

outcome. Furthermore, the analysis of 

quality of care and safety outcomes was 

limited by the short postimplementation study period of 

Massachusetts’s minimum staffing 

standards, which does not allow for 

sufficient time for a complete evaluation 

of the policy. Additionally, the impact 

analysis was focused on data from 

roughly the first year of implementation, 

which usually involves resource 

planning and operational changes to 

meet the new policy standards, and thus 

may not be representative. 

These study results show that there 

was an increase in NA staffing, which 

supports the proposed policy to require 

facilities to meet the minimum staffing 

standards or otherwise be subject to, 

civil money penalties and denial of 

payment for all Medicare and/or 

Medicaid individuals among other 

penalties in accordance with 42 CFR 

488.406. 

(5) Cost and Savings Analysis 

The cost analyses were conducted to 

determine any associated incremental 

costs that nursing homes would likely 

experience to meet minimum staffing 

standards, as well as any Medicare 

savings. Cost analyses used the 2021 Q2 

PBJ System (staffing data), facilityspecific information on hourly costs for 

RNs, LPN/LVNs, and NAs from 

Worksheet S–3, FY 2021 Part V of the 

Medicare Cost Report for 14,688 SNFs, 

and information on resident census that 

is available from files produced for 

comparison to evaluate any associated 

incremental costs. We note that the cost 

analyses were independent of a facility’s 

case-mix. 

Study findings indicate that the 

staffing costs for increasing RN and NA 

staffing levels in nursing homes to meet 

the minimum staffing standards ranges 

from $2.2 to $6.0 billion per year. The 

minimum estimated cost savings to 

Medicare, based on savings from the RN 

staffing requirement, are from the 

decreased use of acute care services 

(fewer hospitalizations and emergency 

department visits) and increased 

community discharges (defined as a 

reduction in Medicare-covered SNF 

days); cost savings ranges from $187 to 

$465 million. The decision to focus on 

estimated savings for RNs only, was 

because RN staffing levels were found to 

have a much stronger and a more 

consistent positive correlation with 

hospitalizations and emergency 

department visits than NAs or LPNs. 

These quantitative analyses of savings 

to Medicare were limited to quality 

metrics for which there are extant 

secondary data. However, there are 

likely additional benefits to quality of 

care and life that cannot be fully 

identified through the analysis in the 

2022 Nursing Home Staffing Study. 

Moreover, these analyses do not 

consider facilities’ existing resources, 

ability to pay for possible staffing levels, 

or access to trained healthcare 

professionals. 

Overall, the study 67 was unable to 

examine the relationship between 

staffing levels by shift and quality/ 

patient safety because the PBJ System 

does not include information on staffing 

by shift. In addition, there was limited 

information on non-nurse staffing, so 

the study team was unable to examine 

minimum staffing standards for nonnurse staff. 

c. Listening Sessions 

In addition to commissioning the 

2022 Nursing Home Staffing Study and 

issuing the FY 2023 SNF PPS RFI, we 

also held two listening sessions on June 

27, 2022, and August 29, 2022, to 

provide information on the study and 

solicit additional input on the study 

design and approach for establishing 

minimum staffing standards. The first 

listening session was attended by 18 

interested parties representing various 

groups within the LTC community. 

During this session, this small group 

discussed several ‘‘big picture’’ 

questions about minimum staffing 

standards and provided input on the 

overall study approach. The second 

listening session was attended by 668 

participants who offered feedback on 

specific questions that were included on 

the registration form, such as how to 

ensure that health equity/health care 

disparities are addressed when 

establishing minimum nurse staffing 

standards and how minimum staffing 

standards should consider differences in 

costs for job categories and variations 

across States. 

During the August 2022 listening 

session,68 participants shared their 

opinions that the current state of staffing 

standards was not adequate, and there 

was consensus that minimum staffing 

standards should be the same across the 

country. Participants recommended that 

CMS consider resident characteristics 

and care needs when developing 

staffing standards. Participants 

indicated that the interdisciplinary team 

and the care provided by non-nursing 

staff such as physical, occupational, 

speech therapists, respiratory therapists 

(especially with pediatric specialty/ 

ventilator units), podiatrists, and 

psychiatrists also need to be considered. 

Others also suggested that the inclusion 

of non-nurse staff to meet staffing 

standards may positively contribute to 

aspects of quality of life for residents. 

Similar to the suggestions received in 

the FY 2023 SNF PPS RFI, some 

participants suggested that CMS create a 

staff-to-resident ratio minimum 

standard, which can further support a 

HPRD staffing standard. Participants 

also suggested that facilities should 

report and display staff-to-resident 

ratios on a daily basis for all shifts. 

Participants in favor of a staff-toresident ratio requirement noted that 

increased transparency will help 

residents and family members to easily 

determine if the facility is in 

compliance with minimum staffing 

standards. 

Lastly, some participants indicated 

that minimum staffing standards should 

consider the need for consistent NA 

qualifications across all 50 States and to 

allow for more online training to 

eliminate the backlog of availability for 

NAs testing and increase the availability 

of classes near candidates to support 

staff shortages. 


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69Medicare Program; Prospective Payment 

System and Consolidated Billing for Skilled 

Nursing Facilities; Updates to the Quality Reporting 

Program and Value-Based Purchasing Program for 

Federal Fiscal Year 2024. https://

www.federalregister.gov/documents/2023/04/10/ 

2023-07137/medicare-program-prospectivepayment-system-and-consolidated-billing-forskilled-nursing-facilities. 

70https://www.cms.gov/newsroom/fact-sheets/ 

fiscal-year-fy-2023-skilled-nursing-facilityprospective-payment-system-final-rule-cms-1765-f. 

71https://www.cms.gov/medicare/providerenrollment-and-certification/ 

surveycertificationenforcement/nursing-homeenforcement. 

72Centers for Medicare & Medicaid Services 

Medicare.gov. Find and Compare Nursing Homes 

Providers near you https://www.medicare.gov/carecompare/?providerType=NursingHome&

redirect=true. 

4. Ongoing CMS Initiatives and 

Programs Impacting LTC Facilities 

In establishing the proposed 

minimum staffing standards, we also 

considered ongoing CMS policies, 

programs, and operations, including 

Medicaid institutional payment and 

transparency, the SNF prospective 

payment system, the SNF Value-based 

Purchasing Program (SNF VBP), 

oversight and enforcement, and CMS 

policies intended to enhance access to 

Medicaid home and community-based 

services and promote community-based 

placements. 

a. Medicaid Institutional Payments and 

Payment Transparency 

In this proposed rule we are also 

proposing a Medicaid Institutional 

Payment Transparency provision that is 

intended to promote public payment 

transparency. Greater transparency will 

help us assess the extent to which LTC 

facilities with a large Medicaid 

population have challenges achieving 

compliance with minimum staffing 

standards. State Medicaid Agencies 

would be required to publicly report the 

percentage of payments expended for 

direct care workers and support staff 

services in Medicaid-participating 

nursing facilities and Intermediate Care 

Facilities for Individuals with 

Intellectual Disabilities (ICF/IID) (see 

section III. of this proposed rule). We 

expect that as a result of this 

transparency requirement, some 

facilities would likely increase staffing 

independent of our proposed minimum 

staffing standards. 

b. Medicare Skilled Nursing Facility 

Prospective Payment System 

The Medicare Skilled Nursing Facility 

Prospective Payment System is a 

comprehensive per diem rate under 

Medicare for all costs for providing 

covered Part A SNF services (that is, 

routine, ancillary, and capital-related 

costs). There are over 15,000 Medicarecertified SNFs. The FY 2023 SNF PPS 

proposed rule published on April 4, 

2023 updated Medicare payment 

policies and rates for SNFs for FY 2024. 

The FY2023 SNF PPS proposed rule 

estimated that the aggregate impact of 

the payment policies in the rule would 

result in a net increase of 3.7 percent, 

or approximately $1.2 billion, in 

Medicare Part A payments to SNFs in 

FY 2024. We note that Section 

1888(e)(4)(E) of the Act requires the SNF 

PPS payment rates to be updated 

annually. These updates take into 

account a number of factors, including 

but not limited to, wages, salaries, and 

other labor-related costs. Specifics 

regarding the process to update SNF 

PPS payment rates are discussed in the 

rule.69

c. Skilled Nursing Facility (SNF) ValueBased Payment (VBP) Program Staffing 

Measure 

In the FY 2023 SNF PPS final rule, we 

adopted a new Total Nurse Staffing 

quality measure under the SNF VBP 

Program, which is used to provide an 

incentive to LTC facilities for improving 

quality of care provided to residents.70

Performance on the Total Nurse Staffing 

measure begins in FY 2024, and 

payment adjustments based on 

performance on this measure (as well as 

others) occurs in FY 2026. This is a 

structural measure that uses auditable 

electronic data reported to CMS’ PBJ 

system to calculate HPRD for total nurse 

staffing. Our proposal is not to be 

duplicative of this existing measure; 

rather, we expect our proposed 

minimum staffing standards to be 

complementary by establishing a 

consistent and broadly applicable 

national floor at which residents are at 

a significantly lower risk of receiving 

unsafe and low-quality care. At the 

same time, the Total Nurse Staffing 

quality measure will drive continued 

improvement in staffing across LTC 

facilities. 

d. Nursing Home Survey and 

Enforcement 

The LTC minimum staffing standards 

proposed in this regulation are part of 

the Federal participation requirements 

for LTC facilities and these Federal 

participation requirements are the basis 

for survey activities and for the 

minimum health and safety 

requirements that must be met and 

maintained to receive payment and 

remain as a Medicare or Medicaid 

provider. As such compliance with 

these requirements will be assessed 

through CMS’ existing survey, 

certification, and enforcement 

process.71 Enforcement actions taken 

against LTC facilities that are not in 

compliance with these Federal 

participation requirements are called 

remedies. The agency that conducts onsite surveys cites deficiencies that 

indicate the specific Federal 

participation requirements that the 

facility did not meet. Sections 1819(h) 

and 1919(h) of the Act, as well as 42 

CFR 488.404, 488.406, and 488.408, 

provide that CMS or the State may 

impose one or more remedies in 

addition to, or instead of, termination of 

the provider agreement when the CMS 

or the State finds that a facility is out 

of compliance with the Federal 

participation requirements. Specifically, 

enforcement remedies that may be 

imposed include the following: 

• Termination of the provider 

agreement; 

• Temporary management; 

• Denial of payment for all Medicare 

and/or Medicaid individuals by CMS; 

• Denial of payment for all new 

Medicare and/or Medicaid admissions; 

• Civil money penalties; 

• State monitoring; 

• Transfer of residents; 

• Transfer of residents with closure of 

facility; 

• Directed plan of correction; 

• Directed in-service training; and 

• Alternative or additional State 

remedies approved by CMS. 

In general, to select the appropriate 

enforcement remedy(ies), the scope and 

severity levels of the deficiencies is 

assessed. The severity level reflects the 

impact of the deficiency on resident 

health and safety and the scope level 

reflects how many residents were 

affected by the deficiency. The survey 

agency determines the scope and 

severity levels for each deficiency cited 

at a survey. 

As part of these survey and 

enforcement activities, we currently 

publish data for all LTC facilities on the 

Care Compare website, including 

number of certified beds, an overall Five 

Star rating, and three individual star 

ratings in the categories of inspections, 

staffing, and quality measurement.72 In 

addition, individual performance 

measures are included on Care 

Compare. With respect to staffing, this 

includes the following staffing data: 

total number of nurse staff HPRD, RN 

HPRD, LPN/LVN HPRD, and NA HPRD, 

as well as some additional staffing 

measures, including weekend hours. 

These published data are collected 

through a variety of mechanisms, 

including during CMS surveys 

(inspection data), through the reporting 


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73Money Follows the Person | Medicaid, https:// 

www.medicaid.gov/medicaid/long-term-servicessupports/money-follows-person/index.html. 

of PBJ System and are also self-reported 

by LTC facilities to us. 

In general, facilities report employing 

three types of nursing staff: RNs, LPNs/ 

LVNs, and NAs. We have been moving 

towards more data-driven enforcement, 

including use of the self-reported PBJ 

System data to guide monitoring, 

surveys and enforcement of existing 

staffing requirements. We continue to 

recognize the value of assessing the 

sufficiency of a facility’s staffing based 

on observations of resident care 

conducted during the onsite survey. For 

example, while compliance with 

numeric minimum staffing standards 

could be assessed using PBJ System 

data, it is possible that due to a facility’s 

layout, management, and staff 

assignments, a facility could meet the 

numeric staffing standards but not 

provide the sufficient level of staffing 

needed to protect residents’ health and 

safety. Resident health status and acuity 

(for example, proportion of residents 

with cognitive decline or use of 

ventilators) are also factors in 

determining adequate staffing. 

Therefore, when assessing the 

sufficiency of a facility’s staffing it is 

important to note that any numeric 

minimum staffing requirement is not a 

target and facilities must assess the 

needs of their resident population and 

make comprehensive staffing decisions 

based on those needs. The additional 

requirements proposed in this rule to 

bolster facility assessments are intended 

to address this need and guard against 

any attempts by LTC facilities to treat 

the minimum staffing standards 

included here as a ceiling, rather than 

a floor. 

In summary, the benefits and success 

of minimum staffing standards are 

heavily dependent on the survey 

process. Therefore, in establishing 

numerical minimum staffing standards 

our goal is to ensure that they are both 

implementable and enforceable, as 

determined through both the PBJ 

System as well as on-site surveys. 

e. Medicaid Home and CommunityBased Services 

We remain committed to a holistic 

approach to meeting the long-term care 

needs of Americans and their families. 

This requires a focus on access to highquality care in the community while 

also ensuring the health and safety of 

those who receive care in LTC facilities. 

In the proposed April 2023 Ensuring 

Access to Medicaid Services (Access 

NPRM) and Medicaid and CHIP 

Managed Care Access, Finance, and 

Quality (Managed Care NPRM), we 

proposed several policies intended to 

work alongside those included in this 

proposed rule. These proposals require 

that at least 80 percent of Medicaid 

payments for personal care, homemaker 

and home health aide services be spent 

on compensation for the direct care 

workforce (as opposed to administrative 

overhead or profit); establish 

standardized reporting requirements 

related to health and safety, beneficiary 

service plans and assessments, access, 

and quality of care; and promote 

transparency through public reporting 

on quality, performance, compliance as 

well as Medicaid managed care plans’ 

payment rates for direct care workers. 

Additionally, we remain committed to 

facilitating transfers from LTC facilities 

to the community through the 

continued implementation of the Money 

Follows the Person program.73

Notably, we believe that the proposed 

minimum staffing standards will 

improve quality of care which includes 

facilitating the transition of care to 

community based care services; similar 

to findings that are reported in the 2022 

Nursing Home Staffing Study as well as 

potential Medicare savings. 

B. Provisions of the Proposed 

Regulations 

As discussed above, meeting 

minimum staffing standards may be 

influenced by and/or affect existing 

CMS initiatives and programs, and 

programs within LTC facilities. Given 

these factors and the broad spectrum of 

suggestions and inputs discussed, we 

acknowledge that there are many 

considerations and potential policy 

options for establishing minimum 

staffing standards. Therefore, we 

propose a comprehensive staffing 

approach that consists of the three 

following elements: (1) establishing new 

minimum nurse staffing standards based 

on case-mix adjusted staffing; (2) 

revising the on-site RN requirement; and 

(3) revising the existing facility 

assessment requirement. We believe, 

when taken together, these three 

elements will establish a consistent and 

broadly applicable national minimum 

staffing standards as a floor, while also 

ensuring that LTC facilities staff beyond 

the minimum staffing standards as 

needed, based on their resident 

population. 

While we expect LTC facilities to 

meet the comprehensive staffing 

standards, we acknowledge that there 

may be circumstances related to the 

nursing workforce that require efforts to 

both ensure access to care and maintain 

quality care and safety. Therefore, we 

are proposing options for exemptions 

and a staggered implementation of the 

proposal’s components for meeting the 

minimum staffing standards. This 

comprehensive approach aims to strike 

the appropriate balance between 

ensuring resident health and safety, 

while guarding against unintended 

consequences, and preserving access to 

care. 

Our goal is to protect resident health 

and safety and ensure that facilities are 

considering the unique characteristics of 

their resident population in developing 

staffing plans, while balancing 

operational requirements and 

supporting access to care. Moreover, the 

comprehensive staffing standards will 

provide staff with the support they need 

to safely care for residents. 

We believe that the elements of the 

proposed comprehensive staffing 

standards discussed in this rule support 

these goals and align with the key 

function of the LTC facility 

participation requirements, which is to 

establish minimum standards to ensure 

safety and quality care for all residents. 

We also acknowledge the impact that 

proposed minimum staffing standards 

will have on the LTC facility industry 

and recognize the potential for 

unintended consequences, such as 

facilities’ misinterpretation of the 

minimum staffing standards. Such 

misinterpretation could result in 

inappropriate behaviors, such as 

choosing to staff only at the minimum 

RN and NA HPRD requirements, 

without adequate consideration of 

facility characteristics and resident 

acuity and needs; healthcare workforce 

substitution (hiring for one position by 

eliminating another); task diversion 

(assigning non-standard tasks to a 

position); or gamesmanship around 

composition of the patient population 

(avoiding residents with more complex 

medical needs). Such actions would not 

result in the improved safety, quality, 

and person-centered care that we seek 

in facilities. As such, we are soliciting 

public comments on the policy 

proposals outlined below, in particular 

the feasibility of the proposals, any 

unintended consequences, and 

alternatives that we should consider. 

We will consider all feedback to inform 

the final policy. 

1. Nursing Services (§ 483.35) 

a. Sufficient Staff (§ 483.35(a)(1)) 

In general, LTC facilities report 

employing three types of nursing staff: 

RNs, LPN/LVNs, and NAs. RNs are 

assigned both administrative roles and 

resident assessment and care planning, 

which typically results in less hands-on 


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74Nursing and Residential Care Facilities—May 

2022 OEWS Industry-Specific Occupational 

Employment and Wage Estimates (bls.gov). 

75Wages of Direct Care Workers Lower than Other 

Entry Level Jobs in most States, Assistant Secretary 

for Planning and Evaluation, April, 2023 https://

aspe.hhs.gov/reports/dcw-wages. 

76 42 CFR 483.35 https://www.whitehouse.gov/ 

briefing-room/statements-releases/2022/02/28/factsheet-protecting-seniors-and-people-withdisabilities-by-improving-safety-and-quality-of-carein-the-nations-nursing-homes/. 

77Medicare and Medicaid Programs; Reform of 

Requirements for Long-Term Care Facilities. (81 FR 

68688) https://www.federalregister.gov/documents/ 

2016/10/04/2016-23503/medicare-and-medicaidprograms-reform-of-requirements-for-long-termcare-facilities. 

78State Policies Related to Nursing Facility (NF) 

Staffing https://www.macpac.gov/wp-content/ 

uploads/2022/03/State-Policies-Related-to-NursingFacility-Staffing.xlsx. 

79https://doh.dc.gov/sites/default/files/dc/sites/ 

doh/publication/attachments/Nursing_Facility_

Regulations_Health_Care_Facilities_Improvement_

2012.pdf. 

80https://theconsumervoice.org/uploads/files/ 

issues/CV_StaffingReport.pdf. 

time with residents and more nonclinical skills (for example, managerial 

and time management skills). They are 

able to assess resident health problems 

and needs, develop and implement care 

plans, and maintain medical records. 

LPN/LVNs are entry-level licensed 

nurses providing basic level care under 

a RN or physician supervision such as 

checking blood pressure, changing 

bandages and dressings, and 

documenting patient care records. NAs 

spend the most time providing care to 

residents by assisting with activities of 

daily living (for example, feeding, 

bathing, and dressing). Moreover, roles 

for NAs may differ from LPN/LVNs 

depending on the State. 

NAs are paid on average $16.90/hour, 

whereas RNs and LVN/LPNs are paid an 

average hourly wage of $37.11 and 

$28.17 in Nursing Care Facilities.74

While the work of NAs and other direct 

care workers, like home health aides 

and personal care assistants, requires 

considerable technical and 

interpersonal skills, these workers 

historically receive low pay, rarely 

receive benefits, and experience high 

injury rates.75 Despite the rising demand 

for services, direct care workers 

continue to earn poverty-level low 

wages. Almost one-half of the direct 

care workforce (45 percent) live below 

200 percent of the Federal poverty level 

and about one-half (47 percent) rely on 

public assistance. Recent research by 

the U.S. Assistant Secretary for Planning 

and Evaluation finds that wages for 

direct care workers, including NAs, lag 

behind workers in other industries with 

similar entry-level requirements, 

exacerbating recruitment and retention 

challenges. According to its findings, 

average hourly wages also vary 

considerably State to State—as low as 

$10.90 for NAs in Louisiana to as high 

as $18.66 in Alaska. 

Current regulations at § 483.35(a)(1)(i) 

and (ii) require facilities to have 

sufficient numbers of licensed nurses 

and other nursing personnel, including 

but not limited to NAs, available 24 

hours a day to provide nursing care to 

all residents in accordance with the 

resident care plans.76 In the 2016 LTC 

final rule mentioned previously,77 CMS 

described the complexity of establishing 

minimum staffing standards at that time 

given that the PBJ System reporting 

program had only been recently 

implemented. Therefore, we did not 

have adequate information in terms of 

facility-level staffing data that would be 

needed to establish minimum staffing 

standards. We further stated that once a 

sufficient amount of data was collected 

and analyzed, we could re-visit the 

establishment of minimum staffing 

standards in LTC facilities. As of 

calendar year 2022, we have access to 

about 6 years of self-reported data from 

the PBJ System which are sufficient to 

examine the staffing issues in LTC 

facilities that still persist and were 

exacerbated by the COVID–19 PHE. 

According to CMS survey and 

enforcement data, over 1,000 facilities 

were cited for insufficient staffing in 

2022 and residents, family, ombudsmen, 

researchers, and others continue to 

report to CMS that understaffing 

negatively affects care. There is also 

considerable variation in State staffing 

requirements. As previously stated, a 

review of State staffing requirements 

indicates that 38 States and the District 

of Columbia currently have minimum 

staffing standards in LTC facilities, but 

these standards differ across States by 

staff types, hours and measurement 

across States, and more so during the 

COVID–19 PHE.78 The proposed RN 

requirement of 0.55 HPRD is higher than 

every State, and only lower than the 

District of Columbia. The proposed NA 

requirement of 2.45 HPRD is higher than 

all States and the District of Columbia, 

based on data from September 2022. 

For example, only 10 States out of the 

38 States have minimum HPRD 

standards for NAs ranging from 1.04 to 

2.44 (see Table 2). 

TABLE 2—HPRD REQUIREMENT FOR

NAS BY STATE

State CNAs 

(HPRD) 

1. California .................................. 2.4 

2. Delaware .................................. 1.6 

3. Florida ‡ .................................... 2.0 

4. Montana .................................... 1.2 

5. New Jersey ............................... 1.04 

6. New York .................................. 2.2 

TABLE 2—HPRD REQUIREMENT FOR

NAS BY STATE—Continued 

State CNAs 

(HPRD) 

7. Oregon ...................................... 2.16 

8. Rhode Island ............................ 2.44 

9. South Carolina .......................... 1.63 

10. Vermont .................................. 2.0 

Notes: CNAs= certified nursing assistants 

or nursing assistants; HPRD= hours per resident day. 

‡ FL revised CNA HPRD from 2.45 to 2.0 on 

4/2022. 

Source: RTI International, 2021, Review of 

State Policies Related to Nursing Facility 

Staffing. 

Some States have implemented a total 

hour per resident day (HPRD) model, 

with some including licensed nurses in 

this calculation, whereas others exclude 

LPN/LVNs but include RNs, DONs, and 

NAs only. For example, the District of 

Columbia requires a minimum daily 

average of 4.1 hours of direct nursing 

care per resident per day (with an 

opportunity to adjust the requirements 

above or below this level, as determined 

by the Director of the Department of 

Health), an RN on site 24 hours a day, 

7 days a week, plus additional nursing 

and medical staffing requirements.79

Some States implemented a ratio of 

numbers of full-time equivalent NAs per 

resident. For example, California 

requires 3.5 HPRD for total nurse 

staffing with at least 0.24 of those hours 

provided by RNs, and 2.4 HPRD for 

NAs, and no HPRD required for LPN/ 

LVNs. Massachusetts requires 3.58 

HPRD for total nurse staffing with at 

least 0.508 of those hours provided by 

a RN.80 Arkansas requires at least 3.36 

average HPRD for nurse and non-nurse 

staff each month to include licensed 

nurses, NAs, medication assistants, 

physicians, physician assistants, 

licensed physical or occupational 

therapists or licensed therapy assistants, 

registered respiratory therapists, 

licensed speech language pathologists, 

infection preventionists, and other 

healthcare professionals licensed or 

certified in the State, plus requirements 

for minimum numbers of licensed 

nurses per residents per shift. There is 

also limited evidence on how these 

different staffing standards were 

developed and their impact. 


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81Abt Associates. (2022). Nursing Home Staffing 

Study Comprehensive report. Report prepared for 

the Centers for Medicare and Medicaid Services. 

https://edit.cms.gov/files/document/nursing-homestaffing-study-final-report-appendix-june-2023.pdf. 

82https://data.cms.gov/provider-data/dataset/ 

4pq5-n9py. 

83Abt Associates. (2022). Nursing Home Staffing 

Study Comprehensive report. Report prepared for 

the Centers for Medicare &and Medicaid Services. 

https://edit.cms.gov/files/document/nursing-homestaffing-study-final-report-appendix-june-2023.pdf. 

84Bowblis J.R. (2011). Staffing ratios and quality: 

an analysis of minimum direct care staffing 

requirements for nursing homes. Health services 

research, 46(5), 1495–1516. https://doi.org/10.1111/ 

j.1475-6773.2011.01274.x. 

85Abt Associates. (2022). Nursing Home Staffing 

Study Comprehensive report. Report prepared for 

the Centers for Medicare & Medicaid Services. 

https://edit.cms.gov/files/document/nursing-homestaffing-study-final-report-appendix-june-2023.pdf. 

86 100 residents × 0.55HPRD = 55 RN hours for 

24 hours; or 18 RN hours/8-hour shift; that is ∼2 

RNs. 

87 100 residents × 2.45HPRD = 245 NA hours for 

24 hours; or 81 NA hours/8-hour shift; that is ∼10 

NAs. 

88 Institute of Medicine (US) Committee on the 

Work Environment for Nurses and Patient Safety. 

Keeping Patients Safe: Transforming the Work 

Environment of Nurses. Edited by Ann Page, 

National Academies Press (US), 2004. doi:10.17226/ 

10851. 

The 2022 Nursing Home Staffing 

Study 81 included an analysis of PBJ 

System data for the fourth quarter of 

2019 through the first quarter of 2022. 

The 2022 Nursing Home Staffing Study, 

as discussed previously, provided CMS 

with findings to inform the proposal for 

minimum staffing standards, and 

discussed trade-offs associated with 

balancing cost and feasibility with 

implications for acceptable quality care 

and safety, especially among the lowest 

performing facilities (that is, at or below 

the 25th percentile for total safety and 

quality measure scores) that are at the 

most risk for providing unsafe care. 

After considering all of the available 

evidence and extensive comments 

provided, we are proposing revisions to 

the Nursing Services regulations at 

§ 483.35 to establish national, 

quantitative minimum staffing 

standards to ensure all facilities provide 

at least the same baseline level of highquality and safe care to residents across 

all participating LTC facilities. We 

propose to revise § 483.35(a)(1)(i) and 

(ii) to further define ‘‘sufficient 

numbers’’ by establishing a numerical 

minimum level for HPRD for RNs and 

NAs. We also propose to revise § 483.5 

to include the definition of ‘‘hours per 

resident day’’ (HPRD), that is, staffing 

hours per resident per day is the total 

number of hours worked by each type 

of staff divided by the total number of 

residents as calculated by CMS.82

Specifically, at § 483.35(a)(1)(i) we 

propose individual nurse staffing type 

standards for RNs and NAs. We propose 

to require facilities to have minimum 

staffing standards of 0.55 HPRD of RNs 

and 2.45 HPRD of NAs as well as to 

maintain sufficient additional nursing 

personnel, including but not limited to 

LPN/LVNs, and other clinical and nonclinical staff, to ensure safe and quality 

care, based on the proposed facility 

assessment requirements at § 483.71. 

CMS is also seeking comments on a 

minimum total nurse staffing standard 

of 3.48 HPRD discussed later in the rule. 

We are not proposing minimum nurse 

staffing standards that include HPRD for 

licensed nurses (that is, RNs plus LPN/ 

LVNs) nor for total nurse staffing (that 

is, RNs, LPN/LVNs, and NAs). This 

proposed policy is based on the 2022 

Nursing Home staffing study findings 

and other literature evidence 

demonstrating that RNs and NAs have a 

larger effect on quality than LPN/LVNs. 

In addition, literature and statistical 

evidence suggests that improved clinical 

outcomes are associated with increasing 

the HPRD rates of RNs and NAs 83

especially among nursing homes that 

have a high reliance on Medicaid.84

Moreover, when LPN/LVNs work with 

higher numbers of HPRD for RNs and 

NAs (that is, total nurse staff) it appears 

to reduce delayed or omitted care and 

increase gross cost savings to 

Medicare.85 We believe that establishing 

national, numerical standards of direct 

care hours will improve safety and 

quality in many LTC facilities. By 

creating a consistent Federal floor for 

staffing expectations, we will better 

define the minimum number of care 

hours residents should receive to 

protect health and safety, while also 

facilitating strengthened oversight and 

enforcement. 

As an example, when establishing the 

proposed HPRD level of 0.55 for RNs 

and 2.45 for NAs, we note that the 

minimum number of RN hours (that is 

0.55 HPRD) provided in a facility that 

has 100 residents and runs an 8-hour 

shift per 24 hours, would require a total 

of 55 RN hours per 24 hours.86 In other 

words, at least two RNs on staff each 8- 

hour shift, plus a third RN for one shift, 

would be necessary in this scenario 

although no per shift minimum is being 

established in this rule. Similarly, the 

minimum number of NA hours (that is 

2.45 HPRD) provided in a facility that 

has 100 residents and runs an 8-hour 

shift per 24 hours will require at least 

a total of 245 NA hours per 24 hours.87

In other words, at least 10 NAs on staff 

each 8-hour shift, plus a third NA for 

one shift would be necessary in this 

scenario although no per shift minimum 

is being established in this rule. 

These proposed levels for hours of 

care would establish the minimum 

nurse staffing levels needed to provide 

safe and high-quality nursing services to 

each resident per day. We underscore 

that these standards reflect only the 

absolute minimum floor adjusting for 

the average acuity across all LTC 

facilities, and the required hours of 

nursing care may be greater but never 

lower than the proposed minimum 

standards, if the acuity needs of 

residents in a facility requires a higher 

level of care. Additionally, the proposed 

staffing levels require all facilities to 

meet at least this minimum floor, even 

if the facility has below average acuity, 

given that resident population can shift 

more rapidly than staffing plans; most 

facilities have either an average acuity 

or higher of resident population; and as 

noted above, the evidence can also 

support a higher range of staffing 

thresholds. 

Notably, we are proposing to specify 

HPRD for RNs and NAs in the minimum 

staffing requirement at § 483.35(a) and 

are not proposing a total nurse staffing 

level under which facilities have the 

flexibility to decide between types of 

licensed nurses to meet the minimum 

requirement. We have taken this 

approach given the evidence that shows 

a strong positive association between 

RN staffing levels and safety and 

quality, as well as NA staffing levels at 

higher HPRDs. Literature evidence also 

indicates that the increased presence of 

RNs in nursing facilities would help 

address several issues. 

First, research evidence suggests that 

greater RN presence has been associated 

with higher quality of care and fewer 

deficiencies. Second, it has been 

reported in the literature that where 

standards provide flexibility as between 

types of licensed nurses (that is, do not 

specify RN hours), LPN/LVNs may find 

themselves practicing outside of their 

scope of practice partly because there 

are not enough RNs providing direct 

patient care and supervision of LPN/ 

LVNs. The specificity of this approach 

would increase the number of hours per 

day that a LTC facility must have RNs 

in the facility and would alleviate 

concerns about LPN/LVNs engaging in 

activities outside their scope of practice 

in the face of resident need during times 

when no RN is on site (80 FR 42168, 

42200). Moreover, to prevent a high rate 

of unusual patient safety events, the 

National Academy of Medicine (NAM) 

(formerly the Institute of Medicine 

(IOM)) suggests having adequate staffing 

levels, specifically NAs, who provide 

most of the care to nursing home 

residents.88 In addition, our proposal, 


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89M. Barton Laws, Aly Beeman, Sylvia Haigh, Ira 

B. Wilson, Rene ́e R. Shield, Prevalence of Serious 

Mental Illness and Under 65 Population in Nursing 

Homes Continues to Grow. Journal of the American 

Medical Directors Association,Volume 23, Issue 7, 

2022, Pages 1262–1263, https://doi.org/10.1016/ 

j.jamda.2021.10.020. 

90Fashaw, Shekinah A et al. ‘‘Thirty-Year Trends 

in Nursing Home Composition and Quality Since 

the Passage of the Omnibus Reconciliation Act.’’ 

Journal of the American Medical Directors 

Association vol. 21,2 (2020): 233–239. doi:10.1016/ 

j.jamda.2019.07.004. 

91Laws, M Barton et al. ‘‘Changes in Nursing 

Home Populations Challenge Practice and Policy.’’ 

Policy, politics & nursing practice vol. 23,4 (2022): 

238–248. doi:10.1177/15271544221118315. 

which focuses on sufficient numbers of 

nursing staff, does not contemplate 

staffing levels for non-nursing staffing 

because nursing staff are most critical to 

ensuring minimum standards of care, 

and there is insufficient information on 

non-nurse staffing levels in the PBJ 

System and other available data sources 

that limits our efforts to examine 

staffing requirements for non-nurse staff 

at this time. We solicit comment on the 

need to allow for substitution, such as 

substituting LPN/LVNs for NAs, in 

extraordinary cases and specifically 

what extreme circumstances would 

appropriately allow for such 

substitution. 

As noted, based on the findings 

reported in the 2022 Nursing Home 

Staffing Study, information gathered 

through the FY2023 SNF PPS RFI, 

listening sessions, assessment of the PBJ 

System data, and review of the literature 

evidence, we are proposing individual 

minimum staffing levels at 0.55 HPRD 

for RNs and 2.45 HPRD for NAs. In 

establishing this proposal, we 

considered the context of substantial 

cost that the proposed policy may 

impose on LTC facilities, especially 

those with limited resources that may 

face difficult decisions in terms of how 

to allocate funding and resources (see 

Regulatory Impact Section for more 

detail). Likewise, the evidence from the 

2022 Nursing Home Staffing Study 

supports the proposed minimum 

staffing level for RNs and NAs for 

improving safety and leading to higher 

quality care. As such, we are proposing 

minimum nurse staffing standards for 

these two types of nursing staff that we 

believe are reasonable and creates 

meaningful, positive impact on resident 

quality and safety. These standards will 

especially help ensure all facilities 

reach acceptable levels of safety and 

quality care, working in tandem with 

CMS’ other quality improvement 

programs that focus on raising 

performance beyond minimum 

requirements. 

The proposed minimum nurse staffing 

standards would create broadly 

applicable minimum standards at which 

all residents across all LTC facilities 

would be at a significantly lower risk of 

receiving unsafe and low-quality care. 

LTC facilities would be required to staff 

above these minimum adjusted baseline 

levels, as appropriate, to address the 

specific needs of their unique resident 

population. This additional staffing 

should be based at the facility level 

using the facility assessment and an 

examination of resident acuity levels. 

LTC facilities are also responsible for 

compliance with other requirements for 

participation, including but not limited 

to § 483.24, which requires that each 

resident must receive and the facility 

must provide the necessary care and 

services to attain or maintain the highest 

practicable physical, mental, and 

psychosocial well-being, consistent with 

the resident’s comprehensive 

assessment and plan of care. Therefore, 

we propose to add a new 

§ 483.35(a)(1)(v) to reinforce this 

standard. Specifically, at 

§ 483.35(a)(1)(v), we propose to specify 

that compliance with minimum HPRD 

for RN and NA should not be construed 

as approval for a facility to have fewer 

nursing and non-nursing staff than the 

number of staff with the appropriate 

competencies and skills sets necessary 

to assure resident safety, and to attain or 

maintain the highest practicable 

physical, mental, and psychosocial 

well-being of each resident, as 

determined by resident assessments, 

acuity and diagnoses of the facility’s 

resident population in accordance with 

the facility assessment required at 

current § 483.70(e)), which we propose 

to be redesignate as new § 483.71. 

The acuity and characteristics of 

residents in LTC facilities has continued 

to evolve and change over the years. For 

example, there are more residents with 

a psychiatric diagnosis with reports 

showing that the proportion of residents 

with schizophrenia increased from 6.5 

percent in 2000 to 12.4 percent in 

2017.89 There has also been an increase 

in the percentage of facilities with an 

Alzheimer’s unit and more residents 

appear to need assistance with activities 

of daily living. For example, it was 

reported that on average 96 percent of 

residents at the facility level needed 

assistance with bathing in 2015, 

compared to the national average of 89 

percent of residents in 1985.90 Also the 

percentage of residents with bladder 

incontinence has also increased over the 

years from 49.3 to 62.1 percent.3

Furthermore, there appears to be an 

increase in the proportion of younger 

residents, under 65 years of age, in part 

due to severe mental illness and 

substance use disorders, who have 

different needs from the traditional 

nursing home population.91 Given the 

variation in resident acuity and 

complexity of care required for a 

facility’s unique resident population, 

facilities must make thoughtful, 

informed staffing plans and decisions 

that are focused on meeting resident 

needs, including maintaining or 

improving resident safety and quality of 

life, which will often result in the need 

for a facility to staff above the minimum 

nurse staffing requirement. Based on the 

needs of its resident population, an 

individual facility may need to maintain 

levels of HPRD for RN, NA and other 

staffing that surpasses the proposed 

minimum nurse staffing HPRD. 

This need for increased staff would be 

evidenced by the facility assessment 

(§ 483.70(e)) and resident assessments 

(§ 483.20) which would require facilities 

to make staffing and care planning 

decisions that account for resident 

acuity, physical/cognitive abilities, 

conditions, diagnoses, etc . . . 

Compliance with the numerical 

minimum staffing requirement is 

necessary but not necessarily sufficient 

to meet staffing needs for every facility. 

Later in this proposed rule, we discuss 

an additional element of this 

comprehensive proposal, revising the 

facility assessment requirement at 

§ 483.70(e) which we believe would 

help avoid the unintended consequence 

of facilities inappropriately staffing at 

the minimum staffing requirement. 

We note that, as discussed previously, 

while the 0.55 and 2.45 HPRD standards 

were developed using case-mix adjusted 

data sources, the standards themselves 

will be implemented and enforced 

independent of a facility’s case-mix. In 

other words, facilities must meet the 

0.55 RN and 2.45 NA HPRD standards, 

regardless of the individual facility’s 

patient case-mix. Based on the October 

2021 Care Compare data, we estimate 

that approximately 6,094 facilities are 

staffed below a level of 0.55 for RNs, 

and approximately 9,998 are currently 

staffed below a level of 2.45 for NAs out 

of an estimated 14,688 total facilities 

with complete information. These 

estimates do not reflect proposed 

exemptions discussed below. Similarly, 

we recognize that there are facilities 

currently staffing at levels greater than 

or equal to 0.55 RN HPRD (n=8,594) and 

2.45 NA HPRD (n=4,690) who would 

not be directly impacted by this 

proposed policy at this time. However, 

staffing should be assessed on an 

ongoing basis and we emphasize that 


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92Clemes, S., Wodchis, W., McGilton, K., 

McGrail, K., & McMaho, M. (2021). The relationship 

between quality and staffing in long-term care: A 

systematic review of the literature 2008–2020. 

International Journal of Nursing Studies, 122, 

https://doi.org/10.1016/j.ijnurstu.2021.104036. 

the facility must provide adequate 

nursing care to meet the needs of each 

resident. 

Typical characteristics of LTC 

facilities that may need to staff up to 

meet this minimum requirement, based 

on having current staffing, below the 

proposed levels are: 

• For-profit facilities (compared to 

government and non-profit facilities). 

• Larger facilities. 

• Freestanding LTC facilities (relative 

to hospital-based). 

• Facilities that are part of a 

Continuing Care Retirement 

Community. 

• Facilities with higher shares of 

Medicaid residents. 

• Facilities that are Special Focus 

Facilities (SFF) or SFF candidates. 

• Rural facilities. 

We note that the existing statutory 

waiver for Medicaid NFs, authorized by 

section 1919(b)(4)(C)(ii) of the Act and 

implemented at § 483.35(e) for a State to 

waive the requirements of § 483.35(b) to 

provide licensed nurses on a 24-hour 

basis would still be in place for NFs to 

pursue through the current waiver 

process. The statutory waiver is 

discussed further under Section II.B. 3. 

‘‘Hardship Exemption from the 

Minimum Hours Per Resident Day 

Requirements for RNs and NAs.’’ In 

addition, we propose to add new 

paragraphs (a)(1)(iii) and (iv) to existing 

§ 483.35 to specify that facilities may be 

exempted from the minimum HPRD 

requirement for RNs and NAs using 

separate criteria, and to indicate the 

period of time that will be assessed to 

determine compliance. 

At new § 483.35(a)(1)(iii), we propose 

facilities that are found non-compliant 

with the HPRD requirement for RNs and 

NAs and meet certain eligibility criteria 

may be exempted from the 0.55 HPRD 

for RNs and/or 2.45 HPRD for NAs 

requirements. The details of this 

exemption framework and the specific 

eligibility criteria are discussed further 

in section II.B.3. ‘‘Hardship Exemption 

from the Minimum Hours Per Resident 

Day Requirements for RNs and NAs.’’ of 

this rule. At new § 483.35(a)(1)(iv), we 

propose that determinations of 

compliance with minimum HPRD 

requirements for RNs and NAs will be 

made based on the most recent available 

quarter of PBJ System data submitted in 

accordance with the requirements at 

existing § 483.70(p) (‘‘Mandatory 

Submission of Staffing Information 

Based on Payroll Data in a Uniform 

Format’’). 

We solicit comments on the 

timeframe used to determine 

compliance with the minimum HPRD, 

specifically if the lookback period 

should be longer, for example 1 year to 

cover a full certification period, or some 

other timeframe to ensure the most 

reliable and realistic assessment of 

staffing data. We also invite public 

comments on the following proposals 

discussed in this section. As highlighted 

throughout the discussion, we 

acknowledge multiple avenues for 

establishing a minimum nurse staffing 

requirement. Based on the proposed 

policy presented in this rule, we are 

seeking feedback regarding whether or 

not alternative policy options are 

necessary to meet and maintain 

acceptable quality and safety within 

LTC facilities, while balancing a 

facility’s ability to comply and ensure 

access to care. 

In developing the proposed rule, we 

considered varying staffing models that 

are available and different approaches 

we could have adopted for establishing 

minimum nurse staffing standards. For 

example, we could have adopted 

multiple different types of combinations 

of staffing requirements, such as a fourpart requirement (inclusive of a total 

nurse staffing ratio, RNs, LPN/LVNs, 

and NAs) or a three-part requirement 

(inclusive of a total nursing staffing 

ratio, RNs, NAs or separate standards for 

RNs, LPN/LVNs, and NAs). We also 

considered that LTC facilities differed 

across States in their reliance on LPN/ 

LVNs, which was one of the reasons that 

we did not set a minimum requirement 

for LPN/LVNs, in addition to available 

evidence on LPN/LVN associations with 

safety and high—quality care. 

Alternatively, we could have proposed 

staffing requirements for professionals 

such as social workers, therapists, 

feeding assistants and other non—nurse 

staff in the minimum staffing 

requirement. However, the HPRD 

reported in PBJ System data for nonnurse staff were insufficient for use in 

establishing minimum staffing 

requirements at this time. 

We propose to use HPRD that LTC 

facilities self-report to CMS and 

currently reported and auditable in the 

CMS’ PBJ System. However, we 

recognize that staffing levels can be 

measured in at least 19 different ways 

with HPRD being the most frequently 

used.92 This includes measuring staffing 

levels as either full time equivalent per 

resident, full time equivalent per 100 

beds, minutes per resident day, or 

nursing staff to resident ratios. 

Alternative minimum staffing policy 

options could also focus on the need to 

increase or decrease the number of 

HPRD or FTEs by nurse staff and/or type 

or on specifying the number by shift 

(including day, evening, night, or 

weekends or over a 24-hour period). 

We are soliciting comments on 

establishing a total nurse staffing 

standard such as 3.48 HPRD among 

other alternatives, in place of a 

requirement only for RNs and NAs, or 

in addition to a requirement for RNs and 

NAs. For example, we considered an 

alternative 3.48 HPRD for the total nurse 

staffing standard—inclusive of the 0.55 

HPRD RN and 2.45 HPRD NA minimum 

standards—based on the evidence from 

the 2022 Nursing Home Staffing Study, 

in addition to other factors discussed 

throughout the proposed rule. We 

considered 0.55 HPRD for RNs and 2.45 

HPRD for NAs as a part of this 

alternative total nurse staffing standard 

based on the evidence from the 2022 

Nursing Home Staffing Study and other 

inputs; 0.55 HPRD for RN and 2.45 

HPRD for NA staffing were found to be 

positively associated with safety and 

quality. Furthermore, NAs spend the 

most time providing care to residents by 

assisting with activities of daily living 

(for example, feeding, bathing, and 

dressing). Including an overarching 

minimum total staffing standard, such 

as 3.48 HPRD, could enable LTC 

facilities flexibility on staffing while 

protecting residents from preventable 

negative outcomes and would 

discourage facilities that currently meet 

the individual RN and NA minimums 

from decreasing total staffing. We seek 

comments on the necessity of a total 

staffing standard and whether a total 

staffing standard should be adopted 

alongside individual standards. We 

specifically seek comment on a standard 

of 3.48 HPRD among other alternatives. 

To maximize the usefulness of the 

feedback from interested parties on 

alternative policy options, we 

emphasize that the recommended policy 

must support and promote acceptable 

quality and safety in LTC facilities as 

the intended goal. We seek comments 

on the effectiveness of a minimum 

staffing standard in maintaining quality 

and safety and ways to minimize 

administrative burden, both for LTC 

facilities and for CMS in maintaining 

and enforcing such a standard and 

enhance compliance among LTC 

facilities through the use of automated 

data collection techniques or other 

forms of information technology. 

We encourage commenters to submit 

evidence and data to support their 

recommendations to the extent possible. 

All comments will be reviewed and 

analyzed, including consideration for 


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Federal Register / Vol. 88, No. 171 / Wednesday, September 6, 2023 / Proposed Rules 61371 

93 42 CFR 483.35, https://www.whitehouse.gov/ 

briefing-room/statements-releases/2022/02/28/factsheet-protecting-seniors-and-people-withdisabilities-by-improving-safety-and-quality-of-carein-the-nations-nursing-homes/. 

94National Academies of Sciences, Engineering, 

and Medicine. 2022. The National Imperative to 

Improve Nursing Home Quality: Honoring Our 

Commitment to Residents, Families, and Staff. 

Washington, DC: The National Academies Press. 

https://doi.org/10.17226/26526. 

95Three challenges of long-term care (LTC) 

nursing. Health. Accessed at https://

www.wolterskluwer.com/en/expert-insights/threechallenges-of-longterm-care-ltc-nursing. Published 

on May 5, 2015. Accessed on February 13, 2023. 

96 Jividen, S. RN vs. LPN. Nurse.org. Accessed at 

https://nurse.org/resources/rn-vs-lpn/. Published on 

July 15, 2021. Accessed on February 13, 2023. 

potential future rulemaking. We 

welcome comments on the following 

questions: 

• What are the benefits and trade-offs 

associated with a two-part minimum 

nurse staffing standard as proposed 

(inclusive of RNs and NAs) relative to 

a three-part standard (inclusive of a 3.48 

HPRD for total nurse staffing, RNs, and 

NAs) or a four-part standard (inclusive 

of a total nurse staffing ratio, RNs, 

LPNs/LVNs, and NAs)? 

• What evidence did States rely on 

when they adopted their specific 

minimum nurse staffing standards, both 

with respect to HPRD and the inclusion 

or exclusion of certain nursing staff, and 

what is the rate of compliance? 

• Whether we should consider a casemix adjusted staffing HPRD for each 

facility to assess compliance with the 

minimum staffing standards? A casemix adjusted staffing HPRD would 

adjust the minimum staffing levels 

based on the health status of the 

residents in each facility (known as 

‘‘case-mix adjustment’’). Specifically, 

the case-mix adjustment methodology 

aggregates data from each resident’s 

assessment (the Minimum Data Set 

(MDS)) to identify the general level of 

acuity of each facility’s residents. The 

level of acuity is then combined with 

the facility’s self-reported (that is, 

unadjusted) staffing information to 

calculate the level of staff the facility 

has that is equivalent to other facilities. 

If we were to adjust the minimum 

staffing levels based on the health status 

of the residents in each facility to ensure 

that staffing levels are adequate to meet 

the unique needs of the residents in 

each facility— 

• What steps can CMS take to support 

LTC facilities in predicting what their 

case-mix adjusted staff might be and 

hire in expectation of that adjusted 

staffing level? What resources will 

facilities need to proactively calculate 

their existing HPRD for nursing staff, 

and what may be needed? 

• What alternative policies or 

strategies should we consider to ensure 

that we enhance compliance, safeguard 

resident access to care, and minimize 

provider burden? Are there are other 

alternative policy strategies we should 

consider? 

b. Registered Nurse (§ 483.35(b)(1)) 

The existing LTC facility staffing 

regulations require an RN to be on site 

8 consecutive hours a day for 7 days a 

week (§ 483.35(b)(1)).93 This 

requirement serves as a minimum to 

protect the health and safety of LTC 

facility residents. In other words, an RN 

is required to be onsite for a total of 8 

consecutive hours out of 24 hours a day. 

The LTC facility may decide to allocate 

all 8 consecutive hours of RN time to 

one day shift or an evening shift for a 

24-hour day, similarly to the HPRD 

proposed for RNs. 

However, to prevent avoidable patient 

safety events, some organizations have 

recommended higher recommendations 

to each RN staffing levels. For example, 

in 2022, the National Academies of 

Science, Engineering, and Medicine 

(NASEM) published a report that 

recommended direct-care RN coverage 

24 hours a day, 7 days a week.94 Like 

NASEM, we are concerned that even 

with minimum HPRD standards, these 

residents are at risk for preventable 

safety events when there is no RN on 

site, particularly during evenings, 

nights, weekends, and holidays. 

Therefore, to avoid placing LTC facility 

residents at risk of preventable safety 

events due to the absence of an RN, we 

are proposing to revise § 483.35(b)(1) to 

require LTC facilities to have an RN 

onsite 24 hours a day, 7 days a week. 

LTC facilities provide care for 

residents with increasing medically 

complex and acute health conditions 

that require substantial resources and 

care. This care is provided or supervised 

by an RN. In the FY 2016 final rule, we 

indicated that CMS was proposing 

changes to the LTC facility participation 

requirements to ensure that LTC 

facilities are providing quality and safe 

care to medically complex residents 

among others (81 FR 68688). We noted 

that not only has the acuity of the 

resident population generally increased, 

but there has also been a dramatic 

increase in the number of residents 

recovering from an acute episode of 

major surgery, injury, or illness (subacute resident population). 

Medicare payment policy has also 

contributed to higher acuity levels in 

LTC facilities. After Medicare 

implemented the prospective payment 

system for hospitals in 1983, there were 

shorter hospital stays for Medicare 

beneficiaries and increased funding for 

post-acute stays in LTC facilities (80 FR 

42168, 42174–42175). This payment 

policy resulted in a growing sub-acute 

resident population in LTC facilities 

that would have previously experienced 

longer hospital stays. Also, with the 

increase in alternatives to LTC facilities, 

such as assisted-living facilities and 

home care, LTC facilities are caring for 

more dependent residents who require 

more complex basic medical care and 

rehabilitative services. In addition, LTC 

facilities are caring for a significant 

number of residents with dementia, 

depression, or other behavioral health 

issues. LTC facilities today have even 

been referred to as ‘‘mini-hospitals.’’ 95

While RNs and LPNs/LVNs appear to 

provide some similar nursing services, 

such as administering medications, 

there are crucial differences. Compared 

to LPNs and LVNs, RNs’ scope of 

practice is broader and they receive 

more education.96 Most importantly, 

RNs practice independently and are 

qualified to conduct clinical nursing 

assessments, whereas LPNs and LVNs 

require an RN or a physician’s 

supervision. This is a critical feature in 

the RN scope of practice given the 

higher acuity of today’s LTC facility 

resident population and the need to 

properly clinically assess residents to 

ensure they are receiving the 

appropriate care. Also, it has been 

reported in the literature that LPN/LVNs 

may find themselves practicing outside 

their scope of practice when there is not 

sufficient RN staffing in a facility to 

provide direct or supervised resident 

care (80 FR 42168, 42200). Thus, we are 

also proposing that the RN be available 

to provide direct resident care around 

the clock. 

For several decades, studies and gray 

literature materials other than 

traditional research publications, such 

as opinion pieces, advocacy materials, 

and non-statistically rigorous research 

published by government agencies have 

recommended an RN onsite 24–7 in LTC 

facilities for similar reasons. As noted 

previously in this proposed rule, the 

2022 NASEM report, recommended that 

LTC facilities have 24 hours a day, 7 

days a week RN onsite coverage. 

NASEM noted that most LTC facilities 

provide care for both short-term 

residents who require rehabilitation or 

subacute care and long-term care for 

residents. While the acuity of short-term 

residents would vary greatly depending 

upon their reason for admission and 

condition, NASEM noted that the longterm care residents typically have 

multiple chronic conditions that require 

professional nursing surveillance to 


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97FN #93, NASEM, p. 58. 

98Medicare and Medicaid Programs; Report of 

Requirements for Long-Term Care Facilities. 81 FR 

68688. Published on October 4, 2016. 

99FN #24, p. 68754. 

100FN #24, p. 68754. 

101National Academies of Sciences, Engineering, 

and Medicine. 2022. The National Imperative to 

Improve Nursing Home Quality: Honoring Our 

Commitment to Residents, Families, and Staff, 

Recommendation 2B. 

monitor the residents for changes that 

might require hospitalization or 

potentially be life-threatening.97 As 

noted previously in this rule, it is the 

RN that has the education, training, and 

qualifications to conduct clinical 

nursing assessments. The report also 

suggested that there be additional RN 

coverage when needed and that the 

DON not be counted towards this 

requirement. 

In the 2016 LTC facility final rule,98

we noted that several commenters, 

including the Center for Medicare 

Advocacy and the California Advocates 

for Nursing Home Reform, 

recommended that LTC facilities have 

24-hours RN onsite coverage. These 

commenters argued that 24-hours RN 

coverage was necessary due to the 

increased acuity in residents and that 

expert nursing skill is needed to 

‘‘anticipate, identify and respond to 

changes in [a resident’s] condition,’’ as 

well as for the residents to have 

appropriate rehabilitation services and 

the best chance for being discharged 

home in a safe and timely manner (80 

FR 68754). Other commenters noted that 

RN staffing was essential for safe and 

effective resident care.99 While we 

agreed with the commenters on the 

importance of staffing, and noted that 

due to their education and licensure, 

RNs possess the skills that are ‘‘essential 

for timely assessment, intervention and 

treatment,100 we did not establish a 

minimum nursing staff standard at that 

time for the reasons noted in the 2016 

final regulation. Instead, at § 483.35, we 

finalized an approach that required the 

LTC facility to have sufficient nursing 

staff to assure safety and well-being of 

each resident as determined by resident 

assessments and individual plans of 

care and considering the number and 

acuity of diagnoses of the facility’s 

resident population in accordance with 

the facility assessment required at 

§ 483.70(e). Among other reasons, we 

did not propose a 24-hour RN onsite 

requirement due to lack of sufficient 

data including PBJ System data. As 

discussed previously in this proposed 

rule, we did not yet have the data from 

the PBJ System or another reliable 

source upon which to base a minimum 

staffing requirement. We now also have 

the Abt study discussed above that 

demonstrated the importance of RNs to 

the quality-of-care residents receive. 

Others, including professional nursing 

organizations, also contended that the 

requirements should be focused on 

resident acuity and the competencies 

and skill sets of the nursing staff than 

a specific numerical requirement for 

categories of staff (80 FR 42168, 42200 

and 42201). We were also concerned 

that some LTC facilities, especially 

those in rural and underserved areas, 

might find complying with such a 

requirement especially challenging (81 

FR 68694, 68752, 68755). 

We also heard these same concerns 

reiterated in the FY 2023 SNF PPS RFI 

comments and the interested parties 

listening sessions discussed previously. 

These commenters noted that RNs, by 

the virtue of their education and 

training, have diagnostic and 

assessment skills that other types of 

nurse staff do not. They noted that LTC 

facilities have populations with the 

highest needs and complex medical 

issues and the availability of RNs for 

resident assessments is necessary and 

could prevent avoidable resident 

hospitalizations. Based on comments 

received in the FY 2023 SNF PPS RFI, 

NASEM’s recommendations, and other 

gray and peer-reviewed literature, we 

propose that all LTC facilities must have 

an RN onsite 24 hours a day, 7 days a 

week at § 483.35(b)(1). 

An existing statutory waiver for 

Medicare SNFs, set out at section 

1819(b)(4)(C)(ii) of the Act and 

implemented at § 483.35(f), permits the 

Secretary to waive the requirements of 

§ 483.35(b) to provide the services of a 

RN for more than 40 hours a week, 

including the director of nursing. This 

waiver would still be in place for SNFs 

to pursue through the current waiver 

process. Facilities would also use this 

process to pursue a waiver of the 24 

hours a day, 7 days a week requirement. 

However, we discuss certain criteria 

that may exempt a LTC facility (SNF or 

NF) from meeting the proposed HPRD 

levels for RNs and NAs specifically 

established in § 483.35(a)(1)(i) and (ii) in 

section III.B.4 of this rule. We welcome 

comments regarding our proposed 

requirements for each LTC facility to 

have an RN on site 24 hours a day, 7 

days a week that is available for direct 

resident care. 

In addition to our proposed 24-hour, 

7 days a week requirement for an RN, 

we continue to maintain a separate 

requirement for the DON. All LTC 

facilities must designate an RN to serve 

as the DON on a full-time basis 

(§ 483.35(b)(2)). The current rule 

stipulates that the DON can serve as a 

charge nurse only if the facility has an 

average daily occupancy of 60 or fewer 

residents (§ 483.35(b)(3)). Since the 

DON must be an RN, the DON is 

included in the proposed nurse 

minimum staffing requirements as an 

RN. All RNs with administrative duties, 

including the DON, should be available 

for direct resident care when needed. 

However, the DON, as well as other 

nurses with administrative duties, 

would probably have limited time to 

devote to direct resident care. We are 

concerned that for some LTC facilities 

having the DON as the only RN on site 

might be insufficient to provide safe and 

quality care to residents. This concern 

was also expressed in the NASEM 2022 

publication discussed previously, in 

which the NASEM recommended that 

the DON not be counted in the 

requirement for an RN 24 hours, 7 days 

a week.101 All comments regarding 

these questions will be reviewed and 

analyzed, including consideration for 

potential future rulemaking. 

We welcome comments on the 

following questions: 

• Does your facility, or one you are 

aware of, have an RN onsite 24 hours a 

day, 7 days a week? If not, how does the 

facility ensure that staff with the 

appropriate skill sets and competencies 

are available to assess and provide care 

as needed? 

• If a requirement for a 24 hour, 7 day 

a week onsite RN who is available to 

provide direct resident care does not 

seem feasible, could a requirement more 

feasibly be imposed for a RN to be 

‘‘available’’ for a certain number of 

hours during a 24 hour period to assess 

and provide necessary care or 

consultation provide safe care for 

residents? If so, under what 

circumstances and using what 

definition of ‘‘available’’? 

• Should the DON be counted 

towards the 24/7 RN requirement or 

should the DON only count in particular 

circumstances or with certain 

guardrails? Please explain why or why 

not. 

• Are there alternative policy 

strategies that we should consider to 

address staffing supply issues such as 

nursing shortages? 

2. Administration (§ 483.70) 

We believe that a comprehensive 

approach to establishing staffing 

requirements is necessary to ensure that 

facilities are making thoughtful, 

informed staffing plans and decisions to 

support the health, safety, and wellbeing of residents. In particular, we 

want to avoid unintended consequences 

of establishing a minimum nurse 


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2016/10/04/2016-23503/medicare-and-medicaidprograms-reform-of-requirements-for-long-termcare-facilities. 

103Abt Associates. (2022). Nursing Home Staffing 

Study Comprehensive report. Report prepared for 

the Centers for Medicare and Medicaid Services 

https://edit.cms.gov/files/document/nursing-homestaffing-study-final-report-appendix-june-2023.pdf. 

staffing requirement that could lead to 

a regression by those facilities currently 

staffing above the staffing requirement 

or facilities only staffing at the 

minimum level proposed without 

considering whether resident acuity or 

resident census, requires additional 

staffing above that floor. It is our 

expectation that LTC facilities will 

consider their capabilities and capacity, 

as well as the number, acuity, and 

diagnoses of their residents when 

developing staffing schedules. 

As previously discussed, in 2016, we 

released a final rule that revised the 

requirements that LTC facilities must 

meet to participate in the Medicare and 

Medicaid Programs.102 As part of those 

revisions, we finalized revisions at 

§ 483.70(e), Administration, to require

facilities to conduct, document, and

annually review a facility-wide

assessment to determine what resources

are necessary to care for its residents

competently during both day-to-day

operations and emergencies. This

facility-wide assessment requires LTC

facilities to determine adequate staffing

type and level based on the number of

residents, resident acuity, range of

diagnoses, the content of care plans, and

other factors. LTC facilities are also

required to address and document in

their facility assessments their resident

population (that is, number of residents,

overall types of care and staff

competencies required by residents, and

cultural aspects), resources (for

example, equipment, and overall

personnel), and a facility-based and

community-based risk assessment.

While we assumed when we finalized 

the 2016 rule that most LTC facilities 

already conducted some type of facility 

assessment of the resident population 

and resources required as part of their 

normal strategic planning, our revisions 

aimed to ensure that facilities had a 

formal process for consistently 

conducting and documenting these 

assessments and keeping them up-todate. The formal facility assessment 

process requires facilities to make 

thoughtful, person-centered staffing 

plans and decisions focused on meeting 

resident needs that may help improve 

the safety of residents. We believe this 

approach will help facilities comply 

with the requirement to have sufficient 

staff, which is investigated during 

surveys. 

One of the goals of the 2016 revisions 

to the LTC facility participation 

requirements for health and safety was 

to ensure that our regulations align with 

current clinical practice and allow 

flexibility to accommodate multiple care 

delivery models to meet the needs of 

diverse populations that receive services 

in these facilities. As noted previously, 

given the limitations of the PBJ System 

data in 2016, we enacted a competencybased approach in the 2016 final rule, 

that focused on achieving the statutorily 

mandated outcome of ensuring that each 

resident is provided care that allows the 

resident to maintain or attain their 

highest practicable physical, mental, 

and psychosocial well-being. The 

facility assessment requirement was 

central to the revised 2016 LTC facility 

participation requirements, and was 

intended to be used by the facility for 

multiple purposes, including, but not 

limited to, determining adequate 

staffing and other resources, 

establishing a Quality Assurance and 

Performance Improvement (QAPI) 

program, and conducting emergency 

preparedness planning. 

Our expectation was that the 

application and development of the 

facility assessment requirement and 

competence-based staffing decisions 

would involve every service provided 

by a LTC facility and apply to all staff, 

including the interdisciplinary team. 

For example, a facility that provides 

dementia care would need to ensure 

that it has a sufficient number of staff 

with the necessary skill sets and 

competencies to care for individuals 

living with dementia. In addition, CMS 

intended for facilities to use the facility 

assessment as a resource and planning 

tool for both short-term (day-to-day) and 

long-term (strategic) purposes. 

As part of the FY2023 SNF PPS 

proposed rule, we sought public input 

on how the facility assessment 

requirement should impact the 

minimum staffing requirement (87 FR 

22720). Many commenters suggested 

that the facility assessment requirement 

should be used to complement the 

minimum staffing requirement and to 

determine any additional nursing staff 

that the facility needs, based on the 

acuity and needs of its resident 

population. Other commenters shared 

concerns that the Federal regulations 

established in 2016 requiring nursing 

homes to conduct a facility selfassessment have never been adequately 

enforced or surveyed. 

As discussed earlier in this proposed 

rule, the recent 2022 Nursing Home 

Staffing Study 103 included in-person 

interviews and surveys with facility 

leadership, direct care staff, and 

residents and their family members to 

better understand the relationship 

among nurse staffing levels, staffing 

mix, and the safety and quality of 

resident care. During interviews, staff 

respondents (RNs, LPNs, NAs) were 

asked to identify the number of 

residents that they could provide with 

quality and safe care and to recommend 

minimum staffing requirements. 

Respondents consistently noted that 

resident acuity was more important than 

the actual number of assigned residents 

in determining whether they could 

provide quality and safe care based on 

their staffing assignments. Some 

respondents suggested minimum 

staffing requirements in terms of the 

number of residents per shift/unit, 

accounting for acuity, that they could 

safely manage and reported that their 

usual shift/unit is frequently shortstaffed. Some respondents also reported 

concerns about a potential minimum 

staffing requirement being set too low, 

fearing that administrators will 

understaff shifts, or that the minimum 

will become the maximum. 

Furthermore, we share the concern 

that there may be facilities who 

currently exceed the proposed 

minimum staffing level and could 

potentially be perversely incentivized to 

lower their staffing levels to the 

required minimum staffing levels, rather 

than continuing to staff above that level 

to meet the unique care needs of their 

residents. Therefore, we underscore that 

in addition to meeting the proposed 

minimum staffing levels, the facility 

assessment must continue to be used to 

determine the necessary resources and 

staff that the facility requires to care for 

its residents, regardless of whether or 

not the facility is staffed at or above the 

new minimum staffing requirement. 

Furthermore, we emphasize that a LTC 

facility’s staffing decisions should be 

based on the specific needs of its 

resident population and not motivated 

by cost-savings. Thus, while each LTC 

facility must comply with the minimum 

nurse staffing requirements set forth at 

§ 483.35(a), unless the facility qualifies

for a hardship exemption under

§ 483.35(g), the facility must also

provide sufficient staff (RNs, licensed

nurses, and NAs) to provide nursing

care to all residents in accordance with

the residents’ assessments and

individual care plans (§ 483.35—

introductory statement). Lastly, we note

that this proposed rule is not intended

to, and would not preempt the

applicability of any State or local law

providing a higher standard (in this

case, a higher HPRD ratio or an RN


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05-nh.pdf. 

coverage requirement in excess of one 

RN on site 24-hours per day, 7 days a 

week) than would be required by these 

proposed rules. To the extent Federal 

standards exceed State and local 

minimum staffing standards, no Federal 

pre-emption is implicated because 

facilities complying with Federal law 

would also be in compliance with State 

law. We are not aware of any State or 

local law providing for a maximum 

staffing level. However, we note that 

this proposed rule is intended to and 

would preempt the applicability of any 

State or local law providing for a 

maximum staffing level, to the extent 

that such a State or local maximum 

staffing level would prohibit a Medicare 

and Medicaid certified LTC facility from 

meeting the minimum HPRD ratios and 

RN coverage levels proposed in this 

rule. 

To ensure that facilities are utilizing 

the facility assessment as intended, we 

are proposing to redesignate the existing 

requirements for the facility assessment 

to its own standalone section from 

§ 483.70(e) to proposed § 483.71. We 

note that we are also proposing 

technical changes throughout the CFR to 

replace references to § 483.70(e) with 

§ 483.71 based on this proposed change. 

Given the importance of the facility 

assessment requirement and the 

multiple program ways in which the 

assessment may be used to inform a 

facility’s decision-making and planning, 

we believe that the requirements should 

be set out as a standalone section rather 

than in the Administration section. In 

addition, while the responsibility to 

implement and utilize the facility 

assessment to inform facility operations 

belongs to the facility’s administrator 

and governing body, we acknowledge 

that a multitude of facility leadership 

and management contribute to the 

development of the assessment given its 

importance and broad applicability. 

In addition to redesignating (this is, 

relocating or moving) the existing 

requirements to a standalone section, 

we are also proposing clarifications 

throughout the section to further specify 

what the facility assessment must be 

used for. We propose to redesignate the 

stem statement for current § 483.70(e) to 

the stem statement for proposed 

§ 483.71. Existing paragraphs 

§ 483.70(e)(1) through (3) identify the 

key elements of the facility assessment 

and specify the considerations that the 

assessment must account for, including 

the facility’s resident population, 

resources, and the facility and 

community-based risk assessment 

which is required to complete as part of 

the facility’s emergency planning. This 

includes using their assessment of 

resident needs to determine the 

competencies and skill sets their staff 

needs to provide safe and quality care 

for the residents. The LTC facility 

should also use the information from 

the facility assessment to determine 

their training needs for its staff. We 

propose to redesignate § 483.70(e)(1) 

through (3) as proposed § 483.71(a)(1) 

through (3), respectively. We note the 

discussion of the proposed revisions 

follows the organization of the 

requirements as presented in the new 

standalone section we are proposing at 

§ 483.71. 

At new paragraph § 483.71(a)(1)(ii), 

we propose to clarify that facilities 

would have to address in the facility 

assessment details of its resident 

population, including the care required 

by the resident population, using 

evidence-based, data driven methods 

that consider the types of diseases, 

conditions, physical and behavioral 

health issues, cognitive disabilities, 

overall acuity, and other pertinent facts 

that are present within that population, 

consistent with and informed by 

individual resident assessments as 

required under existing § 483.20 

‘‘Resident Assessment.’’. Specifically, 

we propose to revise this paragraph by 

specifying the ‘‘use of evidence-based, 

data driven methods’’ and create a link 

to the requirements for the resident 

assessment. Facilities are expected to 

update their facility assessment as 

needed, no less than annually, using 

evidence-based, data-driven methods, 

that consider the needs of their 

residents and the competencies of their 

staff. For example, facilities need to be 

able to describe residents’ acuity levels 

in order to understand the care and 

services required, and we would expect 

that they refer to data sources such as 

the resident assessments; 

comprehensive care plans; MDS; RUG– 

IV categories, if available; or, other 

resident acuity tools. Assessing acuity 

levels and effectively using MDS and 

discharge planning are also an 

important part of ensuring that an 

individual can return to the community 

whenever possible in the least 

restrictive environment. 

In addition, existing regulations at 

§ 483.40 require LTC facilities to 

provide each resident with the 

necessary behavioral health care and 

services for the resident to attain or 

maintain the highest practicable 

physical, mental, and psychosocial 

well-being, in accordance with his or 

her comprehensive assessment and plan 

of care. Hence, we also propose to revise 

this paragraph to add ‘‘behavioral health 

issues’’ to clarify that LTC facilities 

must consider their residents’ physical 

and behavioral health issues. We are 

also concerned with issues of inaccurate 

MDS coding of residents with a 

diagnosis of schizophrenia and are 

taking action to reduce the 

inappropriate use of antipsychotics 

without clinical indication in nursing 

homes.104 Therefore, we believe these 

revisions are necessary to ensure that 

facilities are providing residents with 

appropriate services and care for 

behavioral health. At new 

§ 483.71(a)(1)(iii), we propose to add 

‘‘and skill sets’’ so the requirement 

reads, ‘‘(iii) The staff competencies and 

skill sets that are necessary to provide 

the level and types of care needed for 

the resident population.’’ At new 

§ 483.71(a)(3), we propose to add a 

cross-reference to the existing 

requirements for facilities to conduct a 

facility and community-based risk 

assessment as part of their emergency 

planning resources. 

At new § 483.71(a)(4), we propose to 

require facilities to include the input of 

facility staff, including but not limited 

to categories such as nursing home 

leadership, management, direct care 

staff and their representatives, and staff 

providing other services. A 

comprehensive assessment of what 

resources are required for a LTC facility 

to provide safe care for its resident 

population requires the input from 

facility staff familiar with all of its 

essential services. Nursing staff working 

in facilities can provide information to 

facility management regarding their 

caseload and how many residents they 

believe they can safely provide quality 

care to on a daily basis. Nursing staff are 

also familiar with the unique needs of 

their resident population and can speak 

to the staffing needs at both a shift and 

unit level. 

In addition, direct care employee 

representation in the facility assessment 

is critically important to securing an 

accurate analysis of staffing needs 

required to ensure resident health and 

safety. Direct care employees and their 

representatives are uniquely positioned 

to assess and communicate what staffing 

competencies and levels, as well as 

equipment and other resources are 

needed to provide appropriate care. 

These individuals have a unique 

understanding of the resident 

population’s health needs because of 

their on-the-ground knowledge of 

residents’ care needs and facility 

operations. As examples, direct care 

employees have distinct perspectives 

into what additional training is needed 

to manage increased acuity in resident 


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105 Dean, A., McCallum, J. et al. Resident 

Mortality And Worker Infection Rates From 

COVID–19 Lower In Union Than Nonunion US 

Nursing Homes, 2020–21. April 20, 2022. https://

doi.org/10.1377/hlthaff.2021.01687. 

106Additional Reporting on Key Staffing 

Information and Stronger Payment Incentives 

Needed for Skilled Nursing Facilities, July 2021, 

GAO–21–408, https://www.gao.gov/assets/gao-21- 

408.pdf. 

107CMS Use of Data on Nursing Home Staffing: 

Progress and Opportunities To Do More, March 

2021, OEI–04–18–00451, https://oig.hhs.gov/oei/ 

reports/OEI-04-18-00451.asp. 

108Executive Order on Increasing Access to HighQuality Care and Supporting Caregivers. White 

House. Accessed at https://www.whitehouse.gov/ 

briefing-room/presidential-actions/2023/04/18/ 

executive-order-on-increasing-access-to-highquality-care-and-supporting-caregivers/. Published 

on April 18, 2023. Accessed on April 19, 2023. 

109FN #107, Section 2(b)(ii). 

110Castle, Nicholas G, and John Engberg. ‘‘Staff 

turnover and quality of care in nursing homes.’’ 

Medical care vol. 43,6 (2005): 616–26. doi:10.1097/ 

01.mlr.0000163661.67170.b9. 

111FN #107, Section 2(b)(ii). 

needs; what ethnic, cultural, and 

religious factors are critical to the 

provision of culturally competent 

resident care; and how health 

information technology may be better 

leveraged to deliver consistent, quality 

care according to resident preferences. 

Input into the facility assessment from 

any authorized representatives of direct 

care employees serves several important 

functions. Such representatives may 

sometimes be better positioned to 

directly communicate about facility 

conditions and the needs of the resident 

population on behalf of direct care 

employees who may fear retaliation 

from their employer. There may also be 

circumstances where direct care 

employees are not fluent in English or 

not familiar with translating 

observations into resource categories 

and want a trusted representative to 

enable open and effective 

communication in the facility 

assessment. Alongside direct care 

employees, their representatives may 

also help ensure facility assessments are 

up-to-date and used to inform facility 

staffing. 

Representatives of direct care 

employees may take different forms. 

One scenario of representation may 

involve union workplaces where 

employees have designated a union 

representative, such as an employee or 

third-party elected local union 

representative, business agent, or safety 

and health specialist. Representation 

may also arise in workplaces without 

collective bargaining agreements where 

at least one employee or a subset of 

employees have designated a 

representative from amongst themselves 

or a third-party worker advocacy group, 

community organization, local safety 

organization, or labor union to serve as 

their representative in a facility 

assessment. For example, employees 

may choose to authorize a union safety 

and health specialist to help compile 

staff observations regarding unmet 

training needs or communicate safety 

concerns regarding outdated medical 

equipment, which they may not 

otherwise feel comfortable sharing as 

part of their direct reflections on 

resident needs. 

These benefits of enabling the 

participation of direct employee 

representatives are consistent with the 

demonstrated positive association 

between union representation and 

resident well-being. According to a 

recent study, resident mortality and 

worker infection rates were lower in 

nursing homes with union 

representation compared to those 

without; specifically, the study found 

unions were associated with 10.8 

percent lower resident COVID–19 

mortality rates and 6.8 percent lower 

worker infection rates.105 We are 

soliciting public comments on 

additional studies and data that 

demonstrate the benefits of the 

participation of direct employee 

representatives in the facility 

assessment process. 

Other staff, including but not limited 

to those in food and nutrition, 

pharmacy, and facility services, could 

provide vital information on essential 

services and resources required to care 

for the resident population. If the LTC 

facility provides other services 

including but not limited to physical 

therapy or dialysis, it should include 

input from staff familiar with these 

services as well. A comprehensive 

assessment of what resources are 

required for a LTC facility to provide 

safe care for its resident population 

requires the input from facility staff 

familiar with all of its essential services. 

We encourage LTC facilities to include 

the input of not only those personnel 

from the specifically mentioned areas in 

the proposed requirement, but also of 

staff from all areas and their 

representatives that provide essential 

services or resources for residents. We 

request comments on the operational 

challenges or burdens of this provision 

as well as how CMS can best provide 

oversight of this proposed requirement. 

We propose at new § 483.71(b)(1) to 

require facilities to use the facility 

assessment to inform staffing decisions 

to ensure appropriate staff are available 

with the necessary competencies and 

skill sets necessary to care for its 

residents’ needs as identified through 

resident assessments and plans of care 

as required in § 483.35(a)(3). This 

requirement will help to address some 

outstanding concerns due to limitations 

in the PBJ System. While PBJ System 

data has allowed for additional insight 

into the staffing levels of facilities, there 

remain some limitations as to what that 

data can tell us regarding how facilities 

are staffed. For example, PBJ System 

data cannot give us insight into how 

different resident units are staffed. 

There are some units in LTC facilities 

that require higher levels of care based 

upon the resident acuity, such as 

memory care or ventilator units. PBJ 

System data also does not provide 

information regarding how different 

shifts are staffed within a LTC facility. 

The Government Accountability Office, 

HHS, and OIG have raised concerns 

related to inadequate staffing in LTC 

facilities on the weekends and at 

night.106 107 The new requirement at 

§ 483.71(b)(1) will help address that. 

In addition, we propose at new 

§ 483.71(b)(2) to require facilities to use 

the facility assessment to assess the 

specific needs for each resident unit in 

the facility, and to adjust as necessary 

based on any significant changes in the 

resident population. Facilities would 

also be required, at new § 483.71(b)(3), 

to consider the specific staffing needs 

for each shift, such as day, evening, 

night, weekends, and to adjust as 

necessary based on any significant 

changes to the resident population. 

We propose at new § 483.71(b)(4) that 

LTC facilities would have to use their 

facility assessment to develop and 

maintain a staffing plan to maximize 

recruitment and retention of nursing 

staff. This staffing plan requirement is 

consistent with the aims President 

Biden articulated in the April 2023 

‘‘Executive Order on Increasing Access 

to High-Quality Care and Supporting 

Caregivers’’.108 That E.O. directs the 

Secretary of HHS to consider actions to 

encourage LTC facilities to reduce 

nursing staff turnover.109 This action 

may help improve quality in LTC 

facilities since literature evidence 

suggests that decreases in quality are 

associated with even a low-to-moderate 

increase in RN turnover.110 This E.O. 

also directs the Secretary to consider 

additional actions to improve retention 

of nursing staff by advancing efforts to 

measure and adjust payments based on 

staff turnover.111 For LTC facilities to 

not only comply with both the current 

and proposed staffing requirements in 

this rule but also to achieve the E.O.’s 

goal of increasing access to higher 

quality care for LTC facility residents 

and supporting LTC facility nursing 

staff, it would be necessary for these 

facilities to be able to recruit and retain 


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112COVID–19 Intensifies Nursing Home 

Workforce Challenge, Danny-Brown et al., 2020. 

113Abt Associates. (2022). Nursing Home Staffing 

Study Comprehensive report. Report prepared for 

the Centers for Medicare and Medicaid Services 

https://edit.cms.gov/files/document/nursing-homestaffing-study-final-report-appendix-june-2023.pdf. 

114Bureau of Labor Statistics. https://

data.bls.gov/timeseries/ 

CES6562300001?amp%253bdata_

tool=XGtable&output_view=data&include_

graphs=true. Accessed 08/09/2023.https://

data.bls.gov/timeseries/ 

CES6562300001?amp%253bdata_

tool=XGtable&output_view=data&include_

graphs=true. Accessed 08/09/2023. 

115https://www.ahcancal.org/News-andCommunications/Fact-Sheets/FactSheets/LTC-JobsReport-Jan2023.pdf. 

sufficient numbers of nursing staff with 

the appropriate education, training, 

competencies, and skill sets. To meet 

these objectives, we believe LTC 

facilities would need a staffing plan to 

address staff turnover and consider 

ways to support staff retention. We have 

not specified how the staffing plan 

should be developed or what it must 

contain because we believe that LTC 

facilities should have flexibility in 

developing these plans. However, we 

encourage LTC facilities to assess the 

compensation package the facility offers 

its direct care staff as part of developing 

the staffing plan. We request comments 

on the operational challenges or 

burdens of this provision, as well as 

how CMS can best provide oversight of 

this proposed requirement. 

We are aware that the COVID–19 PHE 

has had an impact on the availability of 

nursing staff in many States, with more 

facilities needing to use temporary 

staffing agencies to fill positions, and 

we want to ensure that facilities have a 

plan in place should staffing shortages 

impact their ability to safely provide 

care to their residents. At proposed 

§ 483.71(b)(5), we are proposing to 

require facilities to use the facility 

assessment to inform contingency 

planning for events that do not require 

the activation of the facility’s emergency 

plan but do have the potential to impact 

resident care. For example, facilities 

should have a contingency plan in place 

in the event that there is unavailability 

of direct care nursing staff or other 

resources needed for resident care. 

In summary, we note that the facility 

assessment works in conjunction with 

the minimum nursing staff requirements 

proposed in § 483.35. While we propose 

to require all LTC facilities (subject to 

exemptions) to comply with the 

minimum nursing staffing requirements 

as set forth at § 483.35(a), those 

minimum standards are only the 

beginning. By conducting the facility 

assessment, the facility will be able to 

determine what is sufficient staffing, as 

required by § 483.35(a), for its resident 

population. The facility assessment will 

determine not only the sufficient 

number of staff, but also what 

competencies and skill sets that staff 

needs to provide safe care for the 

resident population. Thus, we 

emphasize that all LTC facilities must 

comply with the nursing staff 

minimums; however, these minimums 

alone are not targets nor a safe harbor, 

and facilities may need to staff above 

the minimum requirements proposed in 

this rule to satisfy the requirement for 

sufficient staffing. Conducting the 

facility assessment will determine not 

only the number of staff but also the 

competencies and skill sets that staff 

must possess to provide safe and highquality care for the facility’s resident 

population as identified through 

resident assessments and plans of care 

as required in existing § 483.35(a)(3). 

3. Hardship Exemption From the 

Minimum Hours per Resident Day 

Requirements for RNs and NAs 

As noted earlier, we are proposing a 

hardship exemption to the HPRD 

requirements portion of the minimum 

staffing standards. The exemption 

would apply only to the RN and/or NA 

HPRD requirements and is separate and 

distinct from existing the existing 

statutory waiver process that addresses, 

in particular, overarching RN staffing 

requirements. While we acknowledge 

the potential for overlap between the 

exemption and the waiver (that is, a 24/ 

7 RN may meet the HPRD requirement), 

each of the minimum staffing 

requirements independently supports 

resident health and safety. Therefore, 

meeting the 24/7 requirement does not 

also count as meeting the 0.55 RN HPRD 

and 2.45 NA HPRD and vice versa. 

Specifically, as discussed elsewhere in 

this rule, the presence of an RN in a LTC 

facility on a 24-hour basis improves 

overall quality of care. Similarly, but 

separately, a minimum number of RN 

and NA hours per resident per day 

improve overall quality of care. Both 

independently and collaboratively, 

these requirements support meeting 

statutory mandates to provide services 

to attain or maintain the highest 

practicable physical, mental, and 

psychosocial well-being of each 

resident, in accordance with a written 

plan of care. Both the exemptions and 

the waiver are discussed in more detail 

below. 

We fully expect that LTC facilities 

will be able to comply with our 

proposed standards for nursing staff. 

However, we recognize that some 

interested parties have expressed that, 

in some instances, external 

circumstances may prevent a LTC 

facility from meeting our proposed 

minimum staffing requirements, despite 

the LTC facility’s best efforts. We note, 

for example, that the COVID–19 PHE 

exacerbated workforce unavailability 

issues for some LTC facilities. Some 

LTC facilities may be challenged in 

hiring and retaining nursing staff such 

as registered nurses and certified 

nursing assistants due to local 

workforce unavailability, while others 

may need to improve pay and job 

quality in order to attract and retain 

staff, given competition from higherpaying positions or alternate career 

paths. A 2020 Assistant Secretary for 

Planning and Evaluation (ASPE) Report 

found that the COVID–19 PHE 

contributed to staffing shortages and 

health care worker attrition, pushing 

nursing homes to create and implement 

new recruitment infrastructures, 

increase wages, and augment benefits to 

retain staff.112 As noted in the FY 2023 

SNF PPS RFI comments and by 

interested parties during the CMS 

hosted listening sessions previously 

discussed, there is concern from LTC 

trade associations about whether there 

is adequate staffing available to meet 

resident needs and about the feasibility 

of increasing staffing over a short 

timeframe given workforce and cost 

considerations. LTC facility staff 

interviewees who were part of the 

qualitative portion of the 2022 Nursing 

Home Staffing Study 113 also shared 

concerns about unintended 

consequences of requiring minimum 

staffing levels, with fears that some 

nursing homes could be forced to close 

if they cannot come into compliance 

with the minimum requirements. 

According to the Bureau of Labor 

Statistics (BLS), in March 2020, there 

were 3,372,000 health care staff working 

in nursing homes and other LTC 

facilities. This dropped to a low of 

2,961,200 in January 2022, a loss of 

410,000 staff. This is rebounding, as of 

June 2023 there are roughly 235,900 

fewer health care staff working in 

nursing homes and other LTC facilities 

compared to March of 2020.114 The 

decline in staff coincided with 

decreasing LTC facility census 

beginning in March 2020, as noted 

below. A January 2023 AHCA/NCAL 

Report analyzing BLS data notes that 

other health care sectors (Physician 

Offices, Outpatient settings, Home 

Health, and Hospitals) rebounded more 

quickly than the nursing home sector. 

This difference in return to employment 

may have been driven by the 

comparatively low pay and difficult 

working conditions for nursing home 

workers.115 Commenters to the FY 2023 


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116Abt Associates. (2022). Nursing Home Staffing 

Study Comprehensive report. Report prepared for 

the Centers for Medicare and Medicaid Services. 

https://edit.cms.gov/files/document/nursing-homestaffing-study-final-report-appendix-june-2023.pdf. 

117Employment, Hours, and Earnings from the 

Current Employment Statistics survey (National) 

https://data.bls.gov/timeseries/ 

CES6562300001?amp%253bdata_

tool=XGtable&output_view=data&include_

graphs=true Accessed 08/09/2023. 

118Nursing Home Nurse Staff Hours Declined 

Notably during the COVID–19 Pandemic, with 

CNAs Experiencing the Largest Decreases Issue 

Brief (hhs.gov), https://aspe.hhs.gov/sites/default/ 

files/documents/ 

95b3a0f6294c7bb021cfbdc245cd9820/nh-nursestaff-hours-brief.pdf. 

119Perruchoud, Elodie et al. ‘‘The Impact of 

Nursing Staffs’ Working Conditions on the Quality 

of Care Received by Older Adults in Long-Term 

Residential Care Facilities: A Systematic Review of 

Interventional and Observational Studies.’’ 

Geriatrics (Basel, Switzerland) vol. 7,1 6. 28 Dec. 

2021, doi:10.3390/geriatrics7010006. 

120National Academies of Sciences, Engineering, 

and Medicine; Health and Medicine Division; Board 

on Health Care Services; Committee on the Quality 

of Care in Nursing Homes. The National Imperative 

to Improve Nursing Home Quality: Honoring Our 

Commitment to Residents, Families, and Staff. 

Washington (DC): National Academies Press (US); 

2022 Apr 6. Summary. Available from: https://

www.ncbi.nlm.nih.gov/books/NBK584660/. 

121https://www.whitehouse.gov/briefing-room/ 

presidential-actions/2023/04/18/executive-orderon-increasing-access-to-high-quality-care-andsupporting-caregivers/. 

SNF PPS RFI noted concerns such as, 

‘‘We are losing many long-term 

employees to jobs with better salaries 

and many of these jobs are not in 

healthcare. New hires are demanding a 

higher starting salary as well as large 

sign on bonuses.’’ Several labor and 

consumer advocacy groups noted 

competitive wages as a driving factor in 

staff retention/recruitment. Based on 

our estimations detailed in section VI. 

(Regulatory Impact Analysis), of this 

rule, we expect that a total of 12,639 

additional RNs and 76,376 additional 

NAs will be needed to meet our 

proposed HPRD requirements, before 

accounting for any exemptions. In 

particular, we recognize that lower 

staffed nursing homes are more likely to 

be for-profit, larger, rural, and have a 

higher share of Medicaid residents.116

Some recent developments, however, 

should ease staffing difficulties at LTC 

facilities. According to BLS data, as of 

January 2022, the number of LTC 

facility staff has begun to rebound. The 

number of health care staff working in 

nursing homes and other LTC facilities 

as of June 2023 is 3,136,100, with 

preliminary data indicating continued 

rebound.117 Furthermore, beginning in 

March 2020, facility census declined. By 

the end of September 2020, nursing 

home census had declined by an 

average of nine residents per nursing 

home, going from an average of 86 

residents in January 2020 to 77 residents 

in September 2020.118

We recognize that LTC facility 

workers—disproportionately women of 

color—are among the lowest-paid in the 

country and often have to rely on public 

benefits despite working complex and 

demanding jobs. In addition, poor 

working conditions in LTC facilities 

have been found to influence the quality 

of care provided to residents.119

Investments in the care workforce, 

including competitive wages, are 

foundational to helping to retain LTC 

facility workers and improving health 

and educational outcomes. 

Unfortunately, lack of transparency 

regarding nursing home finances, 

operations, and ownership impedes the 

ability to fully understand how current 

resources are allocated.120 This obscures 

evaluation of the industry’s ability to 

absorb the costs of increased staffing 

and improved working conditions. It is 

the policy of the Biden-Harris 

Administration to ensure that the LTC 

workforce is supported, valued, and 

well-paid. Indeed, as previously noted, 

on April 18, 2023, President Biden 

issued an E.O. on Increasing Access to 

High Quality Care and Supporting 

Caregivers. Section 2 of that E.O. 

addresses Increasing Compensation and 

Improving Job Quality for Family 

Caregivers, Early Educators, and LongTerm Care Workers.121

To improve working conditions and 

job quality in federally-funded LTC 

facility programs, we are encouraging 

providers to establish incentives to 

recruit and retain LTC facility workers, 

help prevent burnout, make it as easy as 

possible for LTC facility workers to 

access behavioral health services, and 

improve the care that individuals 

receive. The considerations described 

above, ranging from workforce issues 

exacerbated by the COVID–19 

pandemic, to persistently low wages 

and benefits, and poor working 

conditions for the direct care workforce, 

have informed our approach to the 

proposed minimum staffing standards, 

including the 0.55 RN and 2.45 NA 

HPRD requirements and the proposed 

exemptions. 

The goal of the proposed minimum 

nursing staffing requirement is to ensure 

that residents receive safe and highquality care. It is our intention to 

balance this goal with the need to 

ensure access to care, which is an 

important health and safety 

consideration. Therefore, CMS is 

proposing a hardship exemption to the 

minimum staffing standards, either the 

0.55 RN or the 2.45 NA HPRD 

requirements, or both, proposed at 

§ 483.35(a)(1)(i) and (ii). These proposed 

exemptions will help to address the 

current workforce constraints in certain 

jurisdictions and other potential barriers 

that some LTC facilities may be 

experiencing in the wake of the COVID– 

19 PHE, and to ensure that our 

proposals do not unintentionally create 

access issues. Specifically, we propose 

to re-designate the existing requirements 

for nurse staffing information at existing 

§ 483.35(g) to a new paragraph (h). We 

propose at new § 483.35(g) to allow LTC 

facilities with a verifiable hardship that 

precludes the LTC facility from 

achieving or maintaining compliance to 

be exempt from one or both of the 

proposed requirements at 

§ 483.35(a)(1)(i) and (a)(1)(ii). Given the 

complex health needs of LTC residents, 

to protect resident health and safety, we 

believe that it is important for exempted 

LTC facilities to maintain compliance 

with the 24/7 RN requirement as there 

are longstanding concerns related to low 

staffing levels in LTC facilities on 

weekends and evenings and ongoing RN 

presence is needed to provide care and 

monitor resident health. That 

requirement may be waived only 

through the waiver process 

implemented at § 483.35(f) and 

described below. 

In developing our proposed minimum 

standards for nurse staffing, we 

recognized that sections 1819(b)(4)(C)(ii) 

and 1919(b)(4)(C)(ii) of the Act 

established a waiver process for RN/ 

licensed nurse staffing in LTC facilities. 

We therefore considered whether or not 

a similar mechanism would be 

appropriate for minimum HPRD 

requirements. We determined, in the 

same spirit as the existing waiver 

process, to propose exemptions 

intended to address underlying 

workforce unavailability concerns, 

especially in rural and other 

underserved areas, while balancing the 

need for efforts by LTC facilities to 

recruit staff and improve quality of care. 

While allowing for these exemptions, 

we note that each LTC facility must still 

comply with its statutory and regulatory 

obligations to have sufficient staff to 

assure resident safety, and to attain or 

maintain the highest practicable 

physical, mental, and psychosocial 

well-being of each resident. 

These exemptions, while serving a 

similar purpose, differ from, but are not 

inconsistent with the waiver for RN and 

licensed nurse staffing under sections 

1819(b)(4)(C)(ii) and 1919(b)(4)(C)(ii) of 

the Act. The waiver provisions are 

implemented at § 483.35 (e) and (f). The 

proposed exemptions will be located at 

§ 483.35(g). We emphasize that the 

exemptions apply only to the 


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requirements at § 483.35(a)(1)(i) and (ii) 

for LTC facilities to meet minimum 

HPRD staffing requirements for RNs and 

NAs, while the statutory waiver applies 

specifically to either RN or licensed 

nurse services more broadly. Both take 

into consideration ensuring staff 

sufficiency to achieve resident safety 

and well-being, but will be different 

processes. 

The proposed exemption process 

would be implemented with as little 

administrative burden on LTC facilities 

as possible, while also limiting 

opportunities for inappropriate granting 

of exemptions; it would also ensure that 

we are aware of the staffing status of the 

LTC facility. To obtain an exemption, a 

LTC facility must demonstrate that it 

has been unable to recruit appropriate 

personnel. In addition, the facility 

remains obligated to ensure the health 

and safety of facility residents. 

Therefore, prior to being granted an 

exemption, the LTC facility must be 

surveyed to assess the health and safety 

of the residents. If a LTC facility is 

found noncompliant with the minimum 

staffing requirements and does not meet 

the exclusionary criteria discussed 

below, the LTC facility’s documentation 

of a good faith effort to hire and retain 

staff and the LTC facility’s 

documentation of financial commitment 

must be submitted to CMS. If a LTC 

facility meets the exclusionary criteria, 

it will not be considered for an 

exemption. Such criteria include that 

the LTC facility must not have failed to 

submit PBJ System data in accordance 

with re-designated § 483.70(p), must not 

be an SFF facility, and must not have 

been cited by us as having 

‘‘widespread’’ or ‘‘a pattern of 

insufficient staffing with resultant 

resident harm’’ or at an ‘‘Immediate 

Jeopardy to resident health and safety’’ 

level of severity with respect to 

understaffing within the 12 months 

preceding the survey during which the 

facility’s non-compliance is identified. 

We note that the exemptions do not 

have a separate requirement for the 

availability of an RN or physician for 

immediate response, as the exemptions 

do not relieve the LTC facility of its 

obligation to have 24/7 RN presence. If 

a LTC facility were to obtain a waiver 

of RN/licensed nurse staffing through 

the existing waiver process, the LTC 

facility would provide assurances 

related to having necessary staff 

availability, among other assurances, as 

part of that process to obtain such a 

waiver. We intend to make publicly 

available information on LTC facilities 

that have an exemption to the minimum 

staffing requirements, to assist residents 

and families in choosing a LTC facility. 

To qualify for a hardship exemption, 

we are proposing that LTC facilities 

must meet all of the criteria specified at 

§ 483.35(g)(1) through (4). Those criteria

include:

1. Location (proposed § 483.35(g)(1)):

To meet the criterion for location, a LTC 

facility must either be located: 

a. In an area where the supply of the

applicable health care staff (either RN, 

or NA, or both) is not sufficient to meet 

geographic area needs as evidenced by 

either a medium (that is, 20 percent 

below the national average) or low (that 

is, 40 percent below national average) 

provider-population ratio for nursing 

workforce (§ 483.35(g)(1)(i)), as 

calculated by us, currently by using 

Bureau of Labor Statistics and Census 

Bureau data, or 

b. Twenty miles or more from the next

closest LTC facility, as determined by 

CMS (§ 483.35(g)(1)(ii)). 

2. Demonstrated Good Faith Effort to

Hire and Retain Staff (proposed 

§ 483.35(g)(2)): To meet the criterion for

demonstrated good faith effort to hire

and retain nursing staff, a LTC facility

must be surveyed and cited as

noncompliant with the minimum

staffing requirements, while not meeting

the exclusionary criteria in section 4. To

meet this good faith effort criterion, a

LTC facility must have developed and

implemented a recruitment and

retention plan, as required at proposed

§ 483.71(b)(5), and must demonstrate

that it has been unable, despite diligent

efforts including offering prevailing

wages, to recruit and retain appropriate

nursing staff including NAs. The LTC

facility must document recruitment

efforts. Such documentation is expected

to include job listings in commonly

used recruitment forums found online,

at American Job Centers (coordinated by

the U.S. Department of Labor’s

Employment and Training

Administration), and other forums as

appropriate (§ 483.35(g)(2)(i)), job

vacancies including the number and

duration of vacancies, and offers made

(§ 483.35(g)(2)(ii)). The documentation

must show that offers are made at

prevailing wages or better, as reflected

by looking at data on the average wages

in the Metropolitan Statistical Area in

which the LTC facility is located, and

vacancies by industry as reported by the

Bureau of Labor Statistics or by the

State’s Department of Labor

(§ 483.35(g)(2)(iii)). This look-back

would occur for the time period

following when the vacancies occurred.

Generally, we would expect that to be

a 4- to 6-month period, but could

encompass the full year, based on

circumstances around the vacancies. 

Finally, the documentation must 

include the LTC facility’s staffing plan 

in accordance with proposed 

§ 483.71(b)(4).

3. Demonstrated Financial

Commitment (proposed § 483.35(g)(3)): 

To meet the criterion for financial 

commitment, a LTC facility must be 

surveyed and cited as noncompliant 

with the minimum staffing 

requirements, while not meeting the 

exclusionary criteria in section 4. Once 

a finding of noncompliance has 

occurred, the LTC facility must 

demonstrate through documentation the 

financial resources that the LTC facility 

expends annually on nurse staffing 

relative to revenue. 

4. Exclusions. LTC Facilities must not

have failed to submit PBJ System data 

in accordance with re-designated 

§ 483.70(p), must not have been

determined by us to be an SFF facility,

and must not have been cited by us as

having ‘‘widespread insufficient staffing

with resultant resident harm’’ or ‘‘a

pattern of insufficient staffing with

resultant resident harm’’, or at an

‘‘Immediate Jeopardy to resident health

and safety’’ level of severity with

respect to understaffing within the 12

months preceding the survey during

which the facility’s non-compliance is

identified.

With respect to location, we are 

proposing that LTC facilities meet one 

of two distinct sub criterion to qualify 

for an exemption. If an LTC meets one 

of those criteria, they would then be 

evaluated for fulfilling the remaining 

criteria listed above. 

The first sub criterion applies to LTC 

facilities that are located in a 

geographical area that has a shortage of 

RNs and/or NAs. We define the 

geographical area as the metropolitan 

statistical area (MSA) or nonmetropolitan statistical area (non-MSA) 

where the LTC facility is located using 

data from the U.S. Bureau of Labor 

Statistics (available at https://

www.bls.gov/oes/current/msa_def.htm). 

We determine that there is a ‘‘shortage’’ 

when the MSA or non-MSA has a RN 

and/or NA to population ratio that is 20 

percent below the national average. We 

provide the definitions of both medium 

and low provider to population ratio to 

facilitate comment on the appropriate 

level to use. 

To calculate whether a LTC facility is 

in an area with a shortage of RNs or 

NAs, we first use the Care Compare data 

to identify the State and county where 

each LTC facility is located. We then 

combine these data with information 

from the U.S. Bureau of Labor Statistics 

(available at https://www.bls.gov/oes/ 


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122Weimer, David L., Ph.D., Saliba, Debra, MD, 

MPH, Ladd, Heather, MS, Mukamel, Dana B., Ph.D. 

‘‘Who Visits Relatives in Nursing Homes? 

Predictors of at Least Weekly Visiting’’ The Journal 

of Post-Acute and Long-Term Care Medicine. 

VOLUME 23, ISSUE 7, JULY 2022. Accessed 6/27/ 

2023 https://www.jamda.com/article/S1525- 

8610(21)00831-8/fulltext#%20. 

123Adverse Events in Skilled Nursing Facilities: 

National Incidence Among Medicare Beneficiaries, 

Department of Health and Human Services, Office 

of Inspector General. 

current/msa_def.htm) on the counties in 

each MSA and non-MSA to identify the 

MSA or non-MSA where each LTC 

facility is located. Next, we identify the 

total number of RNs and NAs in each 

MSA and non-MSA using the Bureau of 

Labor Statistic’s Occupational 

Employment and Wage Statistics Query 

System (available at https://

data.bls.gov/oes/#/home). Afterwards, 

we calculate the population for each 

MSA or non-MSA using population 

estimates from the United States Census 

Bureau by summing the population for 

all counties in the MSA or non-MSA 

(available at https://www.census.gov/ 

data/tables/time-series/demo/popest/ 

2020s-counties-total.html#v2022). 

Finally, we calculate whether the LTC 

facility is located in an MSA or a nonMSA with a medium or low providerto-population ratio by comparing the 

area’s provider-to-population ratio to 

the average provider-to-population ratio 

for the United States. 

The second location sub criterion is 

distance to the next closest LTC facility. 

We are proposing this alternative 

distance criterion to address potential 

workforce unavailability within an MSA 

or non-MSA that overall has adequate 

workforce availability, but may have 

pockets within it that are experiencing 

shortages. We note that MSA and non 

MSA’s may be quite large—for example, 

one MSA extends from Arlington, VA to 

West Virginia. Particularly for NAs, the 

availability, or lack thereof, of public 

transportation in some areas, and the 

costs and availability of private 

transportation can make long work 

commutes unfeasible. We also recognize 

there may be access to care concerns 

should a LTC facility limit admissions 

or close as a result of staff unavailability 

within a particular community. In 

addition to access to care and workforce 

availability issues, we also recognize the 

burden on residents and resident 

families when loved ones have to be 

located in LTC facilities (or relocated to 

LTC facilities) at a distance that makes 

family visitation and participation in 

care difficult. According to a 2021 

study, ‘‘travel time has a substantively 

and statistically significant negative 

association on visit probability for all 

age groups’’.122

We considered mileage increments 

from 15 to 50 miles for this alternative 

criterion. After considering the number 

of LTC facilities impacted, the overlap 

of the provider-population ratio, and 

consideration of travel for both staff and 

visitors, we determined that 20 miles 

best addressed these factors compared 

to a 15-mile increment. As noted below, 

we welcome comment on this mileage 

and the factors we should consider in 

determining an appropriate mileage 

criterion. We note that all certified 

nursing homes are geocoded into CMS’ 

online survey and enforcement system. 

This allows us to easily and accurately 

calculate the exact distance of LTC 

facilities to one another. The following 

chart provides our analyses of distances. 

TABLE 3—LTC FACILITIES AT VARIOUS DISTANCES FROM NEXT CLOSEST LTC FACILITY

Distance 

# of LTC Facilities 

without any other 

LTC facility 

nearby 

% of LTC Facilities 

without any other 

LTC facility 

nearby 

(percent) 

Within 15 miles ........................................................................................................................................ 852 5.6 

Within 20 miles ........................................................................................................................................ 422 2.8 

Within 25 miles ........................................................................................................................................ 223 1.5 

Within 30 miles ........................................................................................................................................ 155 1.0 

Within 35 miles ........................................................................................................................................ 106 0.7 

Within 50 miles ........................................................................................................................................ 40 0.3 

Note: The analysis includes 15,089 LTC facilities (1) active as February 2023 and (2) with non-missing values in latitude or longitude. 

There are three exclusions from the 

exemption criteria. First, LTC facilities 

must be in compliance with 

requirements for the submission of PBJ 

System data. This data is critical to our 

evaluation of LTC facility staffing. Next, 

sections 1819(f)(8) and 1919(f)(10) of the 

Act require us to maintain a SFF 

program for enforcement of 

participation requirements for LTC 

facilities that have been identified as 

having substantially failed to meet 

applicable health and safety 

requirements. We are statutorilyrequired to survey these LTC facilities 

once every 6 months. LTC Facilities 

designated as SFFs have a history of 

serious quality issues and are included 

in this program to stimulate 

improvements in their quality of care. A 

LTC facility that is designated as a SFF 

is excluded from receiving an 

exemption from the minimum HPRD 

staffing requirements. 

Finally, most LTC facilities have some 

deficiencies, but some LTC facilities 

have significantly more problems than 

others (about twice the average number 

of deficiencies), or have more serious 

problems than most other LTC facilities 

(including harm or injury experienced 

by residents, and a pattern of serious 

problems that have persisted over a long 

period of time). An OIG report on 

adverse events in nursing homes noted 

that 59 percent of adverse events and 

temporary harm events were clearly or 

likely preventable, and attributed much 

of the preventable harm to substandard 

treatment, inadequate resident 

monitoring, and failure or delay of 

necessary care.123 Therefore, while we 

are acknowledging the potential for LTC 

facility constraints that may create 

access to care issues and providing for 

exemptions as it relates to the minimum 

nursing staffing requirement, we must 

ensure that LTC facilities are providing 

safe and acceptable care despite any 

exemption. Therefore, we propose at 

§ 483.35(g)(4)(ii) that LTC facilities that 

have been cited for ‘‘widespread 

insufficient staffing with resultant 

resident harm’’ or ‘‘a pattern of 

insufficient staffing with resultant 

resident harm’’ or are cited at the 

immediate jeopardy level of severity 

with respect to insufficient staffing 

within the 12 months preceding the 

survey during which the facility’s noncompliance is identified would also not 

meet the criteria for an exemption from 

the requirements at § 483.35(a)(1)(i) and 


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124Calculations use the October 2021 Care 

Compare data set that provides each nursing home’s 

average daily resident census and HPRD for each 

nurse type (that is, RNs, LPNs/LVNs, NAs) using 

the PBJ System data for 2021 Q2. 

(ii). Due to the serious quality issues 

with these LTC facilities and the intent 

of the proposed requirement, we believe 

it is necessary to exclude these LTC 

facilities from the exemption to 

maintain the health and safety of 

residents residing in these LTC 

facilities. 

We emphasize again that the 

exemptions apply only to the 

requirements at § 483.35(a)(1)(i) and (ii) 

for LTC facilities to meet minimum 

HPRD staffing requirements for RNs and 

NAs. As such, LTC facilities that qualify 

for an exemption would still be required 

to comply with the base requirement at 

§ 483.35(a)(1) that LTC facilities provide 

services by a sufficient number of 

[nursing] staff on a 24-hour basis to 

provide nursing care to all residents in 

accordance with resident care plans, as 

well as the proposed requirement at 

§ 483.35(b)(1), for a LTC facility to 

provide onsite RN coverage 24 hours a 

day, 7 days a week; the proposed 

requirements at § 483.71, to conduct a 

facility assessment; as well as the 

multitude of additional minimum 

health and safety standards for LTC 

facilities in 42 CFR part 483, subpart B. 

They are expected to make the effort to 

hire as many RNs and NAs as necessary 

to meet resident needs. We note that 

LTC facilities remain able to apply for 

a waiver of the RN and licensed nurse 

staffing requirements, as required by 

statute and as applicable to the LTC 

facility. The requirements for such a 

waiver are set forth in § 483.35 (e) and 

(f). 

Finally, we propose at § 483.35(g)(5) 

to specify that determinations of 

eligibility for an exemption are based on 

paragraphs (g)(1) through (3) and that 

facilities must provide supporting 

documentation when requested. At 

§ 483.35(g)(5), we propose that hardship 

exemptions would be granted for a 

period of 1-year and could be extended 

in increments of one additional year, 

after the initial 1-year period, if the LTC 

facility continued to meet the 

exemption criteria without experiencing 

additional issues that would prevent 

them from eligibility. 

It is our expectation that LTC facilities 

that qualify for an exemption would 

make ongoing efforts to increase their 

capabilities to achieve compliance with 

the minimum nurse staffing 

requirement. Likewise, we expect that 

additional CMS programs, such as the 

SNF VBP quality measures, will also 

incentivize facilities to improve staffing 

at higher levels to both ensure their 

ability to address resident needs day to 

day and also to capitalize on incentives 

that are at their disposal for quality 

improvements. We solicit comment on 

these opportunities for hardship 

exemptions for facilities. We welcome 

all feedback but are particularly 

interested in the following: 

• What are additional data sources 

that CMS can use to verify LTC facility 

hardships based on location or 

workforce unavailability and shortages 

or grant hardship exemptions? For 

example, the review of health 

professional shortage areas (HPSAs). 

Which data source or criterion, or 

combination of data sources or criteria, 

could accurately indicate hardship 

while minimizing burden to facilities? 

• Is 20 miles the right distance from 

the next closest LTC facility to warrant 

a hardship exemption? What distance 

from the next closest LTC facility results 

in a hardship for resident families? 

• Are there other criteria CMS should 

consider for a facility to demonstrate 

good faith effort to hire and retain 

nursing staff. Should CMS use BLS’s 

median OES data to determine 

prevailing wage? 

• Are there additional approaches to 

mitigating access to care concerns that 

CMS should consider without allowing 

for exemptions to the minimum nurse 

staffing requirement? 

• Are there additional exclusions to 

the proposed exemptions that CMS 

should consider to protect resident 

health and safety? For example, should 

we exclude candidates for the SFF 

program from receiving an exemption? 

• Is 12 months the right look-back 

time frame for exclusions? If not, what 

is the best time frame? Should it be 15 

months? Should it be to and including 

the last recertification survey? 

• Are there additional hardships that 

CMS should consider? If so, how will 

such considerations support quality care 

and protect resident health and safety? 

• Should CMS provide an exemption 

for facilities based on financial 

difficulty/constraints? If so, what would 

be an appropriate judgment of a LTC 

facility’s financial status and/or 

financial effort? Considering the 

Medicaid transparency proposal 

discussed in this proposed rule, should 

CMS identify minimum spending 

thresholds for direct care staff that 

facilities must meet before being 

considered for an exemption? Is there a 

specific spending to revenue threshold 

that would be appropriate? What type of 

data and/or data sources can be used to 

maximize transparency and provide an 

objective determination? 

• Are there additional steps that CMS 

can take to increase transparency and 

address staffing shortages? For example, 

this regulation discusses a proposal to 

require States to report to CMS on the 

percentage of payments for Medicaidcovered nursing facility services that are 

spent on direct care workers and 

support staff. Are there additional 

efforts that CMS and facilities can take 

to promote transparency and 

accountability related to funding for and 

supporting staffing? 

4. Implementation Timeframe 

As discussed, we are proposing a 

minimum nurse staffing requirement for 

LTC facilities of 0.55 and 2.45 HPRD by 

RNs and NAs, respectively. We also 

propose revisions to the existing RN 

staffing to require an RN on site 24 

hours a day, 7 days a week to provide 

nursing care to all residents in 

accordance with resident care plans; 

and propose revisions to the facility 

assessment requirement. The adoption 

of these requirements would improve 

the safety and quality of care of 

residents and provide direct care 

workers with the support needed to 

provide high-quality care. 

We are proposing to implement these 

proposed requirements in three phases, 

to avoid any unintended consequences 

or unanticipated risks to resident care 

when a facility is developing new 

policies and procedures necessary to 

comply with these requirements. 

We acknowledge that these proposed 

requirements would require 

approximately 79 percent of LTC 

facilities to increase their staff levels to 

meet either the RN onsite 24 hours a 

day, 7 days a week requirement or the 

minimum RN and NA HPRD 

requirements to ensure full compliance 

with the new proposals discussed in the 

rule.124 In addition, we anticipate that 

additional time would be needed to 

develop revised interpretive guidance 

and survey processes, conduct surveyor 

training on the changes, and implement 

the software changes in the Long-Term 

Care Survey Process system. 

For facilities located in urban areas, 

we propose that implementation of the 

final requirements be achieved in three 

phases, over a 3-year period. 

Specifically, we propose that— 

• Phase 1 would require facilities to 

comply with the Facility assessment 

requirements (§ 483.71) 60-days after the 

publication date of the final rule. 

• Phase 2 would require facilities to 

comply with the requirement for a RN 

onsite 24 hours a day, 7 days a week 

(§ 483.35(b)(1)) 2 years after the 

publication date of the final rule. 

• Phase 3 would require facilities to 

comply with the minimum staffing 


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125United States Census Bureau Urban and Rural 

https://www.census.gov/programs-surveys/ 

geography/guidance/geo-areas/urban-rural.html. 

126 Kim, Min-Young, Edward Weizenegger, and 

Andrea Wysocki. Medicaid Beneficiaries Who Use 

Long-Term Services and Supports: 2019. Chicago, 

IL: Mathematica, July 22, 2022. Accessed at https:// 

www.medicaid.gov/medicaid/long-term-servicessupports/downloads/ltss-user-brief-2019.pdf. 

Disclaimer: This document contains links to nonContinued 

requirement of 0.55 and 2.45 HPRD for 

RNs and NAs respectively 

(§ 483.35(a)(1)(i) and § 483.35(a)(1)(ii)) 3 

years after the publication date of the 

final rule. 

Given that there are fewer rural LTC 

facilities and a higher percentage of 

rural LTC facilities have greater 

distances between neighboring facilities, 

if a facility was not able to comply with 

the staffing requirement, it can have a 

more pronounced impact on access of 

care. Therefore, we expect that facilities 

in rural areas will require more time to 

comply with these requirements, 

compared to facilities in urban areas. 

For facilities located in rural areas, we 

propose the implementation of the final 

requirements be achieved in three 

phases, over a 5-year period. 

Specifically, we propose that— 

• Phase 1 would require facilities to 

comply with the Facility assessment 

requirements (§ 483.71) 60-days after the 

publication date of the final rule. 

• Phase 2 would require facilities to 

comply with the requirement for a RN 

onsite 24 hours a day, 7 days a week 

(§ 483.35(b)(1)) 3 years after the 

publication date of the final rule. 

• Phase 3 would require facilities to 

comply with the minimum staffing 

requirement of 0.55 and 2.45 HPRD for 

RNs and NAs respectively 

(§ 483.35(a)(1)(i) and (ii)) 5 years after 

the publication date of the final rule. 

We note that the final regulations 

would be effective 60 days following the 

publication of the final rule in the 

Federal Register. The implementation 

date for the specific requirements are 

listed in detail in Tables 4 and 5. 

TABLE 4—IMPLEMENTATION TIMEFRAMES FOR FACILITIES IN URBAN AREAS

Regulatory section(s) Implementation date 

Proposed § 483.71 .................................................................................... Phase 1: 60-days after the publication date of the final rule. 

§ 483.35(b)(1) ........................................................................................... Phase 2: 2 years after the publication date of the final rule. 

§ 483.35(a)(1)(i) and (ii) ............................................................................ Phase 3: 3 years after the publication date of the final rule. 

TABLE 5—IMPLEMENTATION TIMEFRAMES FOR FACILITIES IN RURAL AREAS

Regulatory section(s) Implementation date 

Proposed § 483.71 .................................................................................... Phase 1: 60-days after the publication date of the final rule. 

§ 483.35(b)(1) ........................................................................................... Phase 2: 3 years after the publication date of the final rule. 

§ 483.35(a)(1)(i) and (ii) ............................................................................ Phase 3: 5 years after the publication date of the final rule. 

We are defining ‘‘rural’’ in accordance 

with the Census definition. ‘‘Rural’’ 

encompasses all population, housing, 

and territory not included within an 

urban area.125 We solicit public 

comments on whether a different 

definition should be used. Also, we seek 

feedback on the following: 

• Is the proposed implementation 

timeframe appropriate? If not, are there 

any alternative implementation 

approaches for these requirements? 

• Do other underserved communities 

similarly require longer implementation 

timeframes? 

• To what extent are facilities and 

State governments planning to phase in, 

budget for, and prepare for the 

requirements before they go into effect? 

Additionally, what are the anticipated 

effects on resident health and safety that 

may be associated with these 

preparations? 

We seek input from State Medicaid 

programs and Medicaid interested 

parties. Specifically: 

• Are there any alternative 

implementation approaches for these 

requirements? 

• How might the proposed 

implementation timeframe impact their 

finances and their ability to recruit in 

the same labor market? 

• How do you foresee potential 

interactions with other Medicaid 

initiatives, including implementing 

access standards on home and 

community-based services (HCBS)? 

Finally, to the extent a court may 

enjoin any part of the rule, the 

Department intends that other 

provisions or parts of provisions should 

remain in effect. Any provision of this 

section held to be invalid or 

unenforceable by its terms, or as applied 

to any person or circumstance, shall be 

construed so as to continue to give 

maximum effect to the provision 

permitted by law, unless such holding 

shall be one of utter invalidity or 

unenforceability, in which event the 

provision shall be severable from this 

section and shall not affect the 

remainder thereof or the application of 

the provision to persons not similarly 

situated or to dissimilar circumstances. 

5. Consultation With State Agencies, 

and Other Organizations 

Section 1863 of the Act (42 U.S.C. 

1395z), requires the Secretary to consult 

with appropriate State agencies and 

recognized national listing or 

accrediting bodies, and appropriate 

local agencies, in relation to the 

determination of conditions of 

participation for providers of services. 

Pursuant to section 1863 of the Act, 

in addition to publishing the proposed 

rule we will consult further with the 

relevant entities following the 

publication of the proposed rule. 

III. Medicaid Institutional Payment 

Transparency Reporting Provision 

(§§ 438.72 and 442.43) 

A. Background and Scope 

Millions of Americans, including 

children and adults of all ages, need 

long-term services and supports (LTSS) 

because of disabling conditions, chronic 

illness, and other factors. Medicaid 

allows for the coverage of these services 

through several authorities and over a 

variety of settings, ranging from 

institutional facilities to home and 

community-based settings. Medicaid 

programs are required to provide a 

nursing facility benefit for eligible 

individuals aged 21 or older. Medicaid 

programs may also provide other 

institutional LTSS as optional services, 

including services in Intermediate Care 

Facilities for Individuals with 

Intellectual Disabilities (ICF/IID). 

Medicaid is the largest payer nationally 

of LTSS. In 2019, 1.5 million Medicaid 

beneficiaries received nursing facility or 

ICF/IID services,126 which accounted for 


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61382 Federal Register / Vol. 88, No. 171 / Wednesday, September 6, 2023 / Proposed Rules 

United States Government websites. We are 

providing these links because they contain 

additional information relevant to the topic(s) 

discussed in this document or that otherwise may 

be useful to the reader. We cannot attest to the 

accuracy of information provided on the cited thirdparty websites or any other linked third-party site. 

We are providing these links for reference only; 

linking to a non-United States Government website 

does not constitute an endorsement by CMS, HHS, 

or any of their employees of the sponsors or the 

information and/or any products presented on the 

website. Also, please be aware that the privacy 

protections generally provided by United States 

Government websites do not apply to third-party 

sites. 

127Murray, Caitlin, Alena Tourtellotte, Debra 

Lipson, and Andrea Wysocki. Medicaid Long Term 

Services and Supports Annual Expenditures Report: 

Federal Fiscal Year 2019. Chicago, IL: Mathematica, 

December 9, 2021. Accessed at https://

www.medicaid.gov/medicaid/long-term-servicessupports/downloads/ltssexpenditures2019.pdf. 

128Campbell, S., A. Del Rio Drake, R. Espinoza, 

K. Scales. 2021. Caring for the future: The power 

and potential of America’s direct care workforce. 

Bronx, NY: PHI http://phinational.org/wp-content/ 

uploads/2021/01/Caring-for-the-Future-2021- 

PHI.pdf. 

129Centers for Medicare & Medicaid Services. 

November 2020. Long-Term Services and Supports 

Rebalancing Toolkit. Accessed at https://

www.medicaid.gov/medicaid/long-term-servicessupports/downloads/ltss-rebalancing-toolkit.pdf. 

130Ochieng, N., Chidambaram, P., Musumeci, M. 

Nursing Facility Staffing Shortages During the 

COVID–19 Pandemic. Apr 04, 2022. Kaiser Family 

Foundation. Accessed at https://www.kff.org/ 

coronavirus-covid-19/issue-brief/nursing-facilitystaffing-shortages-during-the-covid-19-pandemic/. 131Harrington, C., Carrillo, H., Garfield, R., 

Squires, E. Nursing Facilities, Staffing, Residents 

and Facility Deficiencies, 2009 Through 2016. Apr 

03, 2018. Kaiser Family Foundation. Accessed at 

https://www.kff.org/report-section/nursingfacilities-staffing-residents-and-facility-deficiencies2009-through-2016-staffing-levels/. 

132Min A., Hong HC. Effect of nurse staffing on 

rehospitalizations and emergency department visits 

among short-stay nursing home residents: A Crosssectional study using the US Nursing Home 

Compare database. Geriatr Nurs. 2019 Mar– 

Apr;40(2):160–165. doi: 10.1016/ 

j.gerinurse.2018.09.010. Epub 2018 Oct 4. PMID: 

30292528. 

133Campbell, S., A. Del Rio Drake, R. Espinoza, 

K. Scales. 2021. Caring for the future: The power 

and potential of America’s direct care workforce. 

Bronx, NY: PHI http://phinational.org/wp-content/ 

uploads/2021/01/Caring-for-the-Future-2021- 

PHI.pdf. 

134Sharma, H. and Liu, X. Association between 

wages and nursing staff turnover in Iowa. Innov 

Aging. 2022; 6(4): igac004. Published online 2022 

Feb 5. doi: https://academic.oup.com/ 

crawlprevention/governor?content=%

2finnovateage%2farticle%2fdoi%2f10.

1093%2fgeroni%2figac004%2f6522981. 

135See, for instance, the discussion of potential 

factors contributing to turnover of direct care 

nursing staff in: Zheng Q, Williams CS, Shulman 

ET, White AJ. Association between staff turnover 

and nursing home quality—evidence from Payroll 

Based journal data. J Am Geriatr Soc. 2022 

Sep;70(9):2508–2516. doi: 10.1111/jgs.17843. Epub 

2022 May 7. PMID: 35524769. 

136Referring to the Request for Information 

released April 2022, included in Medicare Program; 

Prospective Payment System and Consolidated 

Billing for Skilled Nursing Facilities; Updates to the 

over $61 billion in Medicaid 

expenditures, or 13 percent of the $478 

billion in total Medicaid expenditures 

during that year.127 Demand for LTSS, 

whether delivered in institutional 

settings or in the home, is expected to 

continue rising due to the growing 

needs of the aging population.128 129

As discussed in the section on 

Minimum Staffing Standards (section II. 

of this proposed rule), anecdotal, 

quantitative, and qualitative evidence 

indicates that consistent, adequate 

direct care nurse staffing is vital to 

residents’ health and safety. Through 

our regular interactions with State 

Medicaid agencies, provider groups, and 

beneficiary advocates, we have observed 

that all these interested parties routinely 

express the concern that chronic 

understaffing and high rates of worker 

turnover of direct care workers in 

Medicaid-participating nursing facilities 

and ICF/IIDs make it difficult to ensure 

access to high-quality institutional 

services for people with disabilities and 

older adults. In addition to direct care 

nursing staff, other types of direct care 

workers—such as physical therapists or 

feeding assistants—provide long-term 

care services and supports (including, if 

applicable, components of active 

treatment as defined at § 483.440) to 

allow residents to attain or maintain the 

highest practicable physical, mental, 

and psychosocial well-being. 

Additionally, direct care workers play a 

critical role in helping some residents 

develop the daily living skills needed to 

transition out of facilities and back to 

the community, as well as with 

assessing individuals’ readiness for 

discharge and assisting with discharge 

planning. Also critical to residents’ 

quality of life and quality of care are 

support staff who maintain the physical 

environment of the care facility or 

provide other supports to residents, 

such as housekeeping or transportation. 

Understaffing in nursing facilities and 

ICF/IIDs can reduce the efficiency of 

Medicaid payment for services, most 

clearly when the payment methodology 

is based on the actual cost of delivering 

services and such costs are increased 

due to reliance on overtime and 

temporary staff, which can have higher 

hourly costs than non-overtime wages 

paid to permanent staff. Further, 

understaffing can reduce quality of care, 

which can lead to poorer outcomes for 

people in institutional settings and 

result in costly emergency department 

visits and hospitalizations.130 131 132

Accordingly, understaffing can reduce 

the cost-effectiveness of Medicaid 

institutional services. 

In response to these concerns about 

the institutional workforce, we are 

proposing new Federal requirements 

that are intended to promote public 

transparency around States’ statutory 

obligation under section 1902(a)(30)(A) 

of the Act and around the quality 

requirements in section 1932(c) of the 

Act for services furnished through 

managed care organizations (as well as 

for prepaid inpatient health plans 

(PIHPs) under our authority under 

section 1902(a)(4) of the Act), to make 

Medicaid payments that are sufficient to 

enlist enough providers so that quality 

LTSS are available to the beneficiaries 

who want and require such care. 

Specifically, we are proposing to add 

new Federal requirements that are 

intended to promote better 

understanding and transparency related 

to the percentages of Medicaid 

payments for nursing facility and ICF/ 

IID services that are spent on 

compensation to direct care workers and 

support staff. We note that this proposal 

is specific to nursing facility and ICF/ 

IID services, which we at times may 

refer to collectively in this preamble as 

‘‘institutional services.’’ We also note 

that unlike in sections I. and II. of this 

proposed rule, we will not be referring 

to LTC facilities, as the term ‘‘LTC 

facility,’’ for our purposes in this 

section, is both over-inclusive (because 

it can refer to both Medicare- and 

Medicaid-certified nursing facilities) 

and under-inclusive (because the term 

typically is not used to describe ICF/ 

IIDs.) 

We are focusing in this proposal on 

compensation because many direct care 

workers and support staff earn low 

wages and receive limited benefits.133

Evidence suggests that there is a 

connection between wages and high 

rates of turnover among some workers 

in the institutional workforce.134

However, we recognize that other 

factors, such as local labor market 

conditions, worker satisfaction, facility 

culture, and management practices, also 

play important roles in worker turnover 

and shortages.135 Many of these other 

factors lie outside of our regulatory 

purview or the scope of this proposal. 

This proposal is centered on our 

authority under sections 1902(a)(4), 

1902(a)(30), and 1932(c) of the Act to 

examine specific ways in which 

Medicaid payments in fee-for-service 

(FFS) and managed care delivery 

systems are allocated to support 

efficient, effective, and high-quality 

LTSS. 

We are aware that some interested 

parties, including commenters who 

responded to the FY2023 SNF PPS RFI, 

have expressed concerns about whether 

some States’ Medicaid rates have kept 

pace with rising labor costs.136 We are 


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Federal Register / Vol. 88, No. 171 / Wednesday, September 6, 2023 / Proposed Rules 61383 

Quality Reporting Program and Value-Based 

Purchasing Program for Federal Fiscal Year 2023; 

Request for Information on Revising the 

Requirements for Long-Term Care Facilities To 

Establish Mandatory Minimum Staffing Levels. A 

proposed rule by the Centers for Medicare & 

Medicaid Services on 04/15/2022 https://

www.federalregister.gov/documents/2022/04/15/ 

2022-07906/medicare-program-prospectivepayment-system-and-consolidated-billing-forskilled-nursing-facilities. 

137Centers for Medicare & Medicaid Services. 

February 13, 2023. Biden-Harris Administration 

Continues Unprecedented Efforts to Increase 

Transparency of Nursing Home Ownership. 

Accessed at https://www.cms.gov/newsroom/pressreleases/biden-harris-administration-continuesunprecedented-efforts-increase-transparencynursing-home. 

138Campbell, S., A. Del Rio Drake, R. Espinoza, 

K. Scales. 2021. Caring for the future: The power 

and potential of America’s direct care workforce. 

Bronx, NY: PHI http://phinational.org/wp-content/ 

uploads/2021/01/Caring-for-the-Future-2021- 

PHI.pdf. 

139 Yaa Akosa Antwi and John R. Bowblis. The 

Impact of Nurse Turnover on Quality of Care and 

Mortality in Nursing Homes: Evidence from the 

Great Recession. Upjohn Institute Working Paper 

16–249. January 2016. Accessed at https://

research.upjohn.org/cgi/ 

viewcontent.cgi?article=1267&context=up_

workingpapers#:∼:text=Turnover

%20in%20health%20facilities%20reduces,health%

20outcomes%20(Thomas%20et%20al. 

140Zheng Q, Williams CS, Shulman ET, White AJ. 

Association between staff turnover and nursing 

home quality—evidence from Payroll Based journal 

data. J Am Geriatr Soc. 2022 Sep;70(9):2508–2516. 

doi: 10.1111/jgs.17843. Epub 2022 May 7. PMID: 

35524769. 

141Harrington, C., Carrillo, H., Garfield, R., 

Squires, E. Nursing Facilities, Staffing, Residents 

and Facility Deficiencies, 2009 Through 2016. Apr 

03, 2018. Kaiser Family Foundation. Accessed at 

https://www.kff.org/report-section/nursingfacilities-staffing-residents-and-facility-deficiencies2009-through-2016-staffing-levels/. 

142Min A, Hong HC. Effect of nurse staffing on 

rehospitalizations and emergency department visits 

among short-stay nursing home residents: A Crosssectional study using the US Nursing Home 

Compare database. Geriatr Nurs. 2019 Mar– 

Apr;40(2):160–165. doi: 10.1016/ 

j.gerinurse.2018.09.010. Epub 2018 Oct 4. PMID: 

30292528. 

143Holder, J., & Jolley, D. (2012). Forced 

relocation between nursing homes: Residents’ 

health outcomes and potential moderators. Reviews 

in Clinical Gerontology, 22(4), 301–319. 

doi:10.1017/S0959259812000147. 

also aware of the growing scrutiny of 

nursing facilities that have been 

purchased by companies such as private 

equity organizations, and evidence 

suggests that these business models 

have an impact on the quality of 

institutional care.137 We do not intend 

through this proposal to express an 

opinion about amounts of States’ 

expenditures on nursing facility and 

ICF/IID services, nor to comment on 

corporate organizational structures 

within the long-term care industry. As 

will be discussed in greater detail 

below, we are focusing in this proposal 

on data collection and transparency 

around the issue of compensation to 

direct care workers and support staff for 

some types of Medicaid-covered 

institutional services, not on proposing 

minimum reimbursement or payment 

standards for State Medicaid agencies or 

providers. 

We also recognize that there are 

workforce challenges that may impact 

access to other Medicaid-covered 

services aside from institutional 

services. We are focusing in this 

proposed rule on addressing the 

workforce in certain institutional 

services. We are proposing to address 

HCBS workforce challenges outside of 

this rulemaking in the Ensuring Access 

to Medicaid Services proposed rule (88 

FR 27960), published in the May 3, 2023 

issue of the Federal Register. We will 

continue to assess the feasibility and 

potential impact of other possible 

actions to address workforce shortages 

in other parts of the health care sector. 

B. Purpose and Statutory Basis 

Title XIX of the Act established the 

Medicaid program as a joint Federal and 

State program to provide medical 

assistance to eligible individuals. Under 

the Medicaid program, each State that 

chooses to participate in the program 

and receive Federal financial 

participation (FFP) for program 

expenditures establishes eligibility 

standards, benefits packages, and 

payment rates, and undertakes program 

administration in accordance with 

Federal statutory and regulatory 

requirements. The provisions of each 

State’s Medicaid program are described 

in the Medicaid ‘‘State plan’’ and, as 

applicable, in documents related to a 

State’s use of other authorities, such as 

demonstration projects and waivers of 

State plan requirements. Among other 

responsibilities, we approve State plans, 

State plan amendments, demonstration 

projects authorized under section 1115 

of the Act, and waivers authorized 

under section 1915 of the Act; monitor 

activities; and review expenditures for 

compliance with Federal Medicaid law, 

including the requirements of section 

1902(a)(30)(A) of the Act relating to 

efficiency, economy, quality of care, and 

access, to ensure that all applicable 

Federal requirements are met. 

Section 1902(a)(30)(A) of the Act 

requires State Medicaid programs to 

ensure that payments to providers are 

consistent with efficiency, economy, 

and quality of care and are sufficient to 

enlist enough providers so that care and 

services are available to beneficiaries at 

least to the extent as to the general 

population in the same geographic area. 

High-quality institutional services 

require hands-on services delivered by 

direct care workers. In institutional 

settings, direct care workers provide a 

variety of services, including nursing 

services, assistance with activities of 

daily living (such as mobility, personal 

hygiene, and eating), therapies, and 

recreation. High-quality institutional 

services also require support staff who 

maintain the physical environment of 

the care facility or provide other 

services for residents (such as 

housekeeping, janitorial and 

environmental services, food 

preparation, and transportation.) We 

discuss our proposed definitions of 

direct care workers and support staff in 

more detail later in the next section. 

Without a sufficient number of people 

joining or remaining in the direct care 

and support staff workforce, facilities 

may be less able to meet the care needs 

of their residents, whether due to 

understaffing or the hiring of workers 

without the appropriate training, 

expertise, or experience to deliver highquality services and maintain the 

physical environment of the care 

facility. Insufficient numbers of 

qualified direct care workers and 

support staff can lead to poorer health 

outcomes and quality of life for people 

who need institutional 

services.138 139 140 141 142 Further, these 

challenges can result in facility closures 

that in some cases result in residents 

being relocated to other facilities far 

from their friends and families, due to 

a lack of immediately-available 

alternative LTSS options in their 

geographical area or due to a lack of 

sufficient time to seek other options for 

care.143 Therefore, as discussed in 

greater detail in the next section, we 

propose at § 442.43(b) to require that 

States report annually on the percent of 

payments claimed by the State for 

Medicaid-covered services delivered by 

nursing facilities and ICF/IIDs that are 

spent on compensation to direct care 

workers and support staff. As discussed 

later in this section, this proposal is 

intended to promote transparency 

around compensation for direct care 

workers and support staff. We believe 

that gathering and sharing data about 

the amount of Medicaid dollars that are 

going to the compensation of workers is 

a critical step in the larger effort to 

understand the ways we can enact 

policies that support the institutional 

care workforce and thereby help 

advance access to high quality care for 

Medicaid beneficiaries. 

Section 1902(a)(6) of the Act requires 

State Medicaid agencies to make such 

reports, in such form and containing 

such information, as the Secretary may 

from time to time require, and to 


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144Throughout this discussion, we use the term 

‘‘States’’ to include all States, Washington, DC, and 

the territories that include nursing facility services 

or ICF/IID services in their State plans. 

145See, for example, the discussion of low wages 

among direct care workers in Campbell, S., A. Del 

Rio Drake, R. Espinoza, K. Scales. 2021. Caring for 

the future: The power and potential of America’s 

direct care workforce. Bronx, NY: PHI http://

phinational.org/wp-content/uploads/2021/01/ 

Caring-for-the-Future-2021-PHI.pdf. 

146See, for example, the discussion of the 

relationship between staff turnover and nursing 

home quality in Zheng Q, Williams CS, Shulman 

ET, White AJ. Association between staff turnover 

and nursing home quality—evidence from Payroll 

Based journal data. J Am Geriatr Soc. 2022 

Sep;70(9):2508–2516. doi: 10.1111/jgs.17843. Epub 

2022 May 7. PMID: 35524769. 

147See, for example, the use of Payroll Based 

Journal data to analyze staffing hours and 

compensation in Bowblis, J., Brunt, C., Xu, H., and 

Grabowski, D. Understanding Nursing Home 

Spending And Staff Levels In The Context Of 

Recent Nursing Staff Recommendations. Health 

Affairs. 2022:42(2) 197–206. 

comply with such provisions as the 

Secretary may from time to time find 

necessary to assure the correctness and 

verification of such reports. Under our 

authority at section 1902(a)(6) of the 

Act, and consistent with section 

1902(a)(30)(A) of the Act, we propose to 

newly require that State Medicaid 

agencies report, at the facility level, on 

the portion of payments for nursing 

facility and ICF/IID services that are 

spent on compensation for the direct 

care and support staff workforce.144

While some States have voluntarily 

established similar transparency 

policies or initiatives, we believe a 

Federal requirement is necessary and 

would be more effective to generate 

more meaningful and comparable data 

and support transparency nationwide. 

We find no basis for applying these 

proposed requirements only when 

States’ LTSS delivery systems are FFS, 

and thus for the same reasons we are 

proposing them for FFS delivery 

systems, we are also proposing to apply 

them when LTSS systems are covered 

through managed care. For States that 

contract with MCOs and PIHPs to cover 

services delivered by nursing facilities 

and ICF/IIDs, we propose that States 

report annually on the percent of 

payments made to nursing facilities and 

ICF/IIDs that is spent for compensation 

to direct care workers and support staff. 

Section 1932(c) of the Act lays out 

quality assurance standards with which 

States must comply when delivering 

Medicaid services through managed 

care organizations. Including services 

delivered by managed care 

organizations is authorized under 

section 1932(c), which requires the 

Secretary to both monitor States and 

consult with States on strategies to 

ensure quality of care. Additionally, 

based on our authority under section 

1902(a)(4) of the Act to specify 

‘‘methods of administration’’ that are 

‘‘necessary for proper and efficient’’ 

administration of the State plan, we also 

propose to include prepaid inpatient 

health plans (PIHPs) in this proposed 

rule. Again, we see no basis for 

excluding services furnished through a 

PIHP from the proposed requirements; 

throughout this document, the use of 

the term ‘‘managed care plan’’ means 

MCOs and PIHPs and is used only when 

the discussion applies to both 

arrangements. 

This proposal is intended to promote 

transparency around compensation for 

direct care workers and support staff. 

We believe that gathering and sharing 

data about the amount of Medicaid 

dollars that are going to the 

compensation of workers is a critical 

step in the larger effort to understand 

the ways we can enact policies that 

support the institutional care workforce, 

which plays an essential part in the 

economy, efficiency, and quality of 

institutional services. We believe that 

compensation levels are a factor in the 

creation of a stable workforce, and that 

a stable workforce will result in better 

qualified employees, lower turnover, 

and safer and higher quality care.145 146

If individuals are attracted to the 

institutional LTSS workforce and 

incentivized to remain employed in it, 

the workforce is more likely to be 

comprised of workers with the training, 

expertise, and experience to meet the 

diverse and often complex needs of 

individuals with disabilities and older 

adults residing in institutions. A stable 

and qualified workforce will also enable 

beneficiaries to access providers of the 

services they have been assessed to 

need. 

As we discuss below, we are not 

proposing a minimum percentage of 

Medicaid payments for nursing facility 

services and ICF/IID services that must 

be spent on compensation to direct care 

workers and support staff. We do not 

have adequate information at this time 

to determine such a minimum 

percentage, nor what impact requiring a 

minimum percentage would have on 

Medicaid institutional payments. We 

are aware that data collected from 

nursing facilities as part of the PBJ 

reporting program in § 483.70(q) 

provides the potential to begin 

extrapolating information about the 

relationships between staffing hours and 

staff compensation in nursing facilities 

that serve Medicaid residents.147 We 

also understand that the variability 

among States’ Medicaid institutional 

payment rate methodologies and 

payment rates presents challenges to 

national studies on issues related to 

staffing and compensation. In addition, 

we note that, because there are 

comparatively fewer reporting 

requirements for ICF/IIDs than there are 

for nursing facilities, there is a need for 

greater data and transparency on the 

workforce in these facilities. We view 

this proposed transparency requirement 

as a necessary step in gathering and 

making publicly available more 

information about Medicaid 

institutional payments that can aid in 

further analyses, which in turn can 

inform future policy development and 

potential rulemaking. Please refer to the 

discussion in section IV. (Collection of 

Information) of this proposed rule 

where we discuss in greater detail the 

specifics of the activities and resources 

we anticipate would be required from 

States, managed care plans, and 

providers to implement and comply 

with these proposed requirements. 

We also note that while aspects of this 

proposal are intended to complement 

the goals expressed in section II of this 

preamble, the following proposals 

presented below would be, if finalized, 

distinct provisions. To the extent a court 

may enjoin any part of a final rule, the 

Department intends that other 

provisions or parts of provisions should 

remain in effect. Should they be 

finalized, we intend that any provision 

of the proposals described in this 

section or in another section held to be 

invalid or unenforceable by its terms, or 

as applied to any person or 

circumstance, would be construed so as 

to continue to give maximum effect to 

the provision permitted by law, unless 

such holding is one of utter invalidity 

or unenforceability, in which event we 

intend that the provision would be 

severable from the other finalized 

provisions described in this section and 

in other sections and would not affect 

the remainder thereof or the application 

of the provision to persons not similarly 

situated or to dissimilar circumstances 

C. Proposed Provisions 

We are proposing to create a new 

provision, § 442.43, which would 

specify requirements for States to report 

on compensation for direct care workers 

and support staff as a percentage of 

Medicaid payments for nursing facility 

and ICF/IID services. At § 442.43(a)(1), 

we propose to define compensation to 

include salary, wages, and other 

remuneration as defined by the Fair 

Labor Standards Act and implementing 

regulations (29 U.S.C. 201 et seq., 29 

CFR parts 531 and 778), and benefits 

(such as health and dental benefits, sick 

leave, and tuition reimbursement). In 


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148Active treatment services, as defined in 42 

CFR 483.440, are services required in ICF/IIDs as 

part of their Medicaid Conditions of Participation. 

149Centers for Medicare & Medicaid Services, 

Electronic Staffing Data Submission Payroll Based 

Journal: Long-Term Care Facility Policy Manual. 

https://www.cms.gov/Medicare/Quality-InitiativesPatient-Assessment-Instruments/ 

NursingHomeQualityInits/Downloads/PBJ-PolicyManual-Final-V25-11-19-2018.pdf. 

addition, we propose to define 

compensation to include the employer 

share of payroll taxes for direct care 

workers and support staff delivering 

Medicaid-covered nursing facility and 

ICF/IID services (which, while not 

necessarily paid directly to the workers, 

is paid on their behalf). We considered 

whether to include training or other 

costs in our proposed definition of 

compensation. However, we believe that 

a definition that more directly addresses 

the financial benefits to workers would 

better measure the portion of the 

payment for services that went to direct 

care workers and support staff, as it is 

unclear that the cost of training and 

other workforce activities is an 

appropriate way to quantify the benefit 

of those activities for workers. We are 

also concerned that requesting providers 

to quantify and include costs of nonfinancial benefits in their reporting 

would prove burdensome and could 

introduce a lack of uniformity in 

determining and reporting related costs. 

We request comment on our proposed 

definition of compensation, particularly 

whether the definition of compensation 

should include other specific financial 

and non-financial forms of 

compensation for the workers included 

in these proposed provisions. 

At § 442.43(a)(2), for the purposes of 

the proposed reporting provision at 

§ 442.43(b), we propose to define direct 

care workers to include: nurses 

(registered nurses, licensed practical 

nurses, nurse practitioners, or clinical 

nurse specialists) who provide nursing 

services to Medicaid-eligible 

individuals receiving nursing facility 

and ICF/IID services; certified nurse 

aides who provide such services under 

the supervision of one of the foregoing 

nurse provider types; licensed physical 

therapists, occupational therapists, 

speech-language pathologists, and 

respiratory therapists; certified physical 

therapy assistants, occupational therapy 

assistants, speech-language therapy 

assistants, and respiratory therapy 

assistants or technicians; social workers; 

personal care aides; medication 

assistants, aides, and technicians; 

feeding assistants; activities staff; and 

other individuals who are paid to 

provide clinical services, behavioral 

supports, active treatment (as defined at 

§ 483.440 148), or address activities of 

daily living (such as those described in 

§ 483.24(b), which includes activities 

related to mobility, personal hygiene, 

eating, elimination, and 

communication), for individuals 

receiving Medicaid-covered nursing 

facility and ICF/IID services. Our 

proposed definition of direct care 

worker is intended to broadly define 

such workers to ensure that the 

definition appropriately captures the 

diversity of roles and titles that direct 

care workers may have. 

We recognize that our proposed 

definition of direct care worker differs 

from the definition of direct care staff at 

§ 483.70(q)(1), which was established 

for the PBJ reporting program at 

§ 483.70(q). The PBJ reporting program 

requires that LTC facilities report on the 

staffing hours of specified direct care 

staff (but does not require reporting on 

the compensation for direct care staff). 

In particular, our proposed definition 

does not include administrators (or staff 

whose primary function is 

administrative or supervisory), nor do 

we propose to include physicians or 

physician assistants. This difference is 

intentional as we are more closely 

aligning our proposed definition of 

direct care worker with the definition of 

direct care worker for a similar 

provision focused on HCBS in the 

Ensuring Access to Medicaid Services 

proposed rule (88 FR 27960), published 

in the May 3, 2023 issue of the Federal 

Register. We believe that closer 

alignment of the definition in this 

proposed rule with the definition in the 

Ensuring Access to Medicaid Services 

proposed rule would help to provide a 

more consistent picture of the direct 

care workforce for individuals receiving 

Medicaid-covered LTSS across settings. 

We also believe that this may reduce 

State reporting burden. Additionally, we 

believe the definition of direct care 

workers proposed in this rule represents 

a subset of the categories of direct care 

staff that nursing facilities are already 

familiar with as part of the PBJ reporting 

requirement.149 Further, we note that 

ICF/IIDs are currently not required to 

participate in the PBJ reporting, and 

thus, we do not expect them to be 

affected by the definition of direct care 

staff at § 483.70(q)(1). 

We request feedback on our proposed 

definition of direct care worker at 

§ 442.43(a)(2). We specifically request 

whether there are categories of staff we 

should add to, or remove from, our 

proposed definition. Additionally, we 

are particularly interested in ensuring 

that this provision includes staff who 

can be instrumental in helping residents 

achieve the level of health or develop 

skills needed to transition from nursing 

facilities back into the community, 

assess residents for readiness for 

transition, and support in discharge 

planning. We request feedback from the 

public as to whether our proposed 

definition appropriately includes 

workers who provide these services, or 

if we would need to include such staff 

as a distinct category of staff within this 

provision. We also request comment on 

whether we should adopt the definition 

of direct care staff at § 483.70(q)(1), 

instead of our proposed definition of 

direct care worker. If commenters 

support adopting the definition of 

§ 483.70(q)(1), we request that they also 

provide information on whether this 

definition would include the staff who 

help residents achieve the level of 

health or develop the skills needed to 

transition from nursing facilities back 

into the community, assess residents for 

readiness for transition, and support in 

discharge planning, or if these staff 

would still need to be specified as a 

separate category. 

We also propose in § 442.43(a)(2) to 

define direct care workers to include 

individuals employed by or contracted 

or subcontracted with a Medicaid 

provider or State or local government 

agency. This proposal is in recognition 

of the varied ownership and 

employment relationships that can exist 

in Medicaid institutional services. For 

instance, differences may include: 

institutions that are privately owned 

and operated or facilities owned and 

operated by a local or State government; 

facilities that are partially or wholly 

staffed through a third-party staffing 

organization through a contractual 

arrangement; or staff who are employed 

directly or as independent contractors. 

We solicit comment on whether this 

component of our proposed definition 

adequately captures the universe of 

potential employment or contractual 

relationships between institutional 

facilities and relevant direct care 

workers. 

At § 442.43(a)(3), for the purposes of 

the proposed reporting requirement at 

§ 442.43(b), we propose to define 

support staff to include individuals who 

are not direct care workers and who 

maintain the physical environment of 

the care facility or support other 

services (such as cooking or 

housekeeping) for residents. Similar to 

our proposed definition of direct care 

worker, our proposed definition of 

support staff is intended to broadly 

define such workers to ensure that the 

definition appropriately captures the 

diversity of roles and titles that such 

workers may have. Specifically, we 


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150Centers for Medicare & Medicaid Services, 

State Medicaid Directors Letter # 21–006, New 

Supplemental Payment Reporting and Medicaid 

Disproportionate Share Hospital Requirements 

under the Consolidated Appropriations Act, 2021, 

December 10, 2021. https://www.medicaid.gov/ 

federal-policy-guidance/downloads/smd21006.pdf. 

propose to define support staff to 

include: housekeepers; janitors and 

environmental services workers; 

groundskeepers; food service and 

dietary workers; drivers responsible for 

transporting residents; and any other 

individuals who are not direct care 

workers and who maintain the physical 

environment of the care facility or 

support other services for individuals 

receiving Medicaid-covered nursing 

facility and ICF/IID services. We request 

comment on whether there are other 

specific types of workers, such as 

security guards, who should be 

included in the definition. We are also 

soliciting comment on whether any of 

the types of workers listed in this 

proposal should be excluded from the 

definition of support staff. We also 

request comment, generally, on our 

proposal to include support staff in this 

proposed reporting requirement. 

We propose to define support staff to 

include individuals employed by or 

contracted or subcontracted with a 

Medicaid provider or State or local 

government agency. Similar to our 

discussion of the proposed definition of 

direct care worker in § 442.43(a)(2), our 

intention with this proposal is to 

recognize the varied employment 

relationships that can exist in Medicaid 

institutional services, including the use 

of third-party employers. (For instance, 

a facility may contract with a third-party 

transportation company to provide 

transportation services to residents.) We 

solicit comment on whether this 

component of our proposed definition 

adequately captures the universe of 

potential employment or contractual 

relationships between institutional 

facilities and relevant support staff. 

Based on our authority at sections 

1902(a)(6) and (a)(30)(A) of the Act with 

respect to FFS, and sections 1902(a)(4) 

and 1932(c) of the Act with respect to 

managed care plans, we are proposing 

new reporting requirements at 

§ 442.43(b) to require States to report 

annually, by delivery system (if 

applicable) and by facility, on the 

percent of Medicaid payments for 

nursing facility and ICF/IID services that 

is spent on compensation for direct care 

workers and on compensation for 

support staff, at the time and in the form 

and manner specified by CMS. We 

believe that this information would help 

identify national trends and would also 

help States identify facilities that appear 

to be outliers in terms of the amount of 

Medicaid payment going to direct care 

worker and support staff compensation. 

We believe that contextualizing direct 

care worker and support staff 

compensation information in this 

manner would help States understand 

whether current payment rates for 

nursing facility and ICF/IID services are 

consistent with economy, efficiency, 

and quality, and sufficient to ensure 

meaningful beneficiary access. 

We are proposing that the reporting to 

CMS would be for all Medicaid 

payments made to nursing facility and 

ICF/IID providers. For FFS payments, 

this would include base payments and 

supplemental payments for nursing 

facility and ICF/IID services. We note 

that for FFS base and supplemental 

payments, we are relying on the 

definition of ‘‘supplemental payments’’ 

provided in section 1903(bb)(2) of the 

Act, which defines supplemental 

payments as Medicaid payments to a 

provider that are in addition to any base 

payment made to providers under the 

State plan or under demonstration 

authority. As discussed in guidance 

released in 2021, we interpret ‘‘base 

payment’’ (as used in the definition of 

‘‘supplemental payment’’ in section 

1903(bb)(2)(A) of the Act), to refer to a 

standard payment to the provider on a 

per-claim basis for services rendered to 

a Medicaid beneficiary in an FFS 

environment. The base payment can 

include: (1) any payment adjustments; 

(2) any add-ons; and/or (3) any other 

additional payments received by the 

provider that can be attributed to 

services identifiable as having been 

provided to an individual beneficiary, 

including those that are made to 

account for a higher level of care, 

complexity, or intensity of services 

provided to an individual 

beneficiary.150

We are proposing that States report on 

FFS base and supplemental payments 

made to facilities because we believe 

this would provide a comprehensive 

picture of Medicaid FFS payments made 

for these services. However, we 

recognize that, given the variability in 

both base and supplemental payments 

across (and even within) States, there 

may be value in understanding the 

percent of the base payments alone that 

is going to compensation for direct care 

workers and support staff. We solicit 

comment on whether, for FFS 

payments, we should instead request 

reporting on only the percent of base 

payments spent on such compensation, 

or separate reporting on the percent of 

base payments and on the percent of 

aggregated payments (base plus 

supplemental payments) spent on such 

compensation. 

We also propose at § 442.43(b) that for 

States that contract with MCOs and/or 

PIHPs to cover services delivered by 

nursing facilities and/or ICF/IIDs, that 

States report on the percent of payments 

made by the MCO or PIHP to nursing 

facilities and ICF/IIDs that is spent for 

compensation to direct care workers and 

support staff. For these managed care 

plans, payments would include the 

managed care plan’s contractually 

negotiated rate, State directed payments 

defined in § 438.6(a), pass-through 

payments defined in § 438.6(a) for 

nursing facilities, and any other 

payments from the MCO or PIHP to the 

nursing facility or ICF/IID. We are also 

proposing to require that States, if they 

deliver the relevant services through 

both FFS and managed care, they report 

separately for each delivery system. 

We note that we are proposing that 

the reporting be performed annually. 

We solicit comment on this timeframe. 

We request comment on whether annual 

reporting is reasonable, or if we should 

reduce the frequency of reporting to 

every other year or every 3 years. 

We propose at § 442.43(b)(1) to 

require this reporting for payments, 

including FFS base and supplemental 

payments and payments from managed 

care plans, to nursing facilities and ICF/ 

IIDs for Medicaid-covered services, with 

the exception of services offered in 

swing bed hospitals (as described in 

§ 440.40(a)(1)(ii)(B)). We are proposing 

to exclude swing bed hospitals, as we 

do not want to pose a burden on rural 

hospitals that provide LTSS to a 

comparatively small number of 

beneficiaries. We welcome comment on 

this proposal. 

At § 442.43(b)(2), we propose that 

States exclude from the reporting 

payments for which Medicaid is not the 

primary payer. If finalized, this would 

mean that States would exclude 

Medicaid payments to cover only costsharing payments on behalf of residents 

who are dually eligible for Medicare and 

Medicaid and whose skilled nursing 

care services are paid for by Medicare. 

We are proposing this exclusion for two 

reasons. The first is that, given that 

facilities (particularly nursing facilities) 

receive revenue from sources other than 

Medicaid, we wish to reiterate that this 

reporting is limited to only the percent 

of Medicaid payments going to 

compensation for direct care workers 

and support staff (and thus would not 

include Medicare or private payments). 

The second reason for this exclusion is 

that the goal of this reporting, as 

discussed throughout this preamble, is 

to collect data demonstrating the 


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relationship between Medicaid 

payments for nursing facility and ICF/ 

IID services and the wages paid to direct 

care workers and support staff. We 

believe that including cost-sharing 

payments for services that were 

primarily paid for by Medicare is 

outside the scope of this data collection. 

However, we solicit feedback from the 

public on whether including costsharing payments for services that were 

primarily paid for by Medicare would 

provide a more accurate picture of the 

relationship between Medicaid 

payments and worker compensation. 

We also request comment on whether 

excluding cost-sharing payments would 

increase or decrease burden on States 

and providers. 

We also note that we are not 

proposing to exclude beneficiary 

contributions to their care when 

Medicaid is the primary payer of the 

services. For FFS programs, base 

payments included in the reporting 

should be representative of the total 

payment amount a provider would 

expect to receive as payment-in-full for 

the provision of Medicaid services to 

individual beneficiaries. (We note that 

§ 447.15 defines payment-in-full as ‘‘the 

amounts paid by the agency plus any 

deductible, coinsurance or copayment 

required by the plan to be paid by the 

individual.’’) For managed care delivery 

systems, although the term ‘‘paymentin-full’’ as defined at § 447.15 is not 

applicable, for consistency between FFS 

and managed care delivery systems, any 

deductible, coinsurance or copayment 

required to be paid by the individual 

would similarly be included in the total 

amount used to determine the percent of 

Medicaid payments for nursing facility 

and ICF/IID services that is spent on 

compensation for direct care workers 

and support staff. Therefore, we believe 

the rate used for comparison should be 

inclusive of total payment from the 

Medicaid agency, MCO, or PIHP plus 

any applicable coinsurance, copayments 

and deductibles, to the extent that a 

beneficiary is expected to be liable for 

those payments. We note that this 

understanding helps promote 

consistency with a proposal regarding 

payment reporting in the Ensuring 

Access to Medicaid Services proposed 

rule (see, in particular, the discussion at 

88 FR 28012). We welcome feedback on 

whether commenters believe beneficiary 

contributions should be excluded. 

We considered whether to allow 

States, at their option, to exclude from 

their reporting payments to providers 

that have low Medicaid revenues or 

serve a small number of Medicaid 

beneficiaries, based on Medicaid 

revenues for the service, the number of 

Medicaid beneficiaries receiving the 

service, or other Medicaid utilization 

data including but not limited to 

Medicaid bed days. We considered this 

option as a way to reduce State, 

managed care plan, and provider data 

collection and reporting burden based 

on the experience of States that have 

implemented similar reporting 

requirements. However, we are 

concerned that such an option could 

discourage providers from serving 

Medicaid beneficiaries or increasing the 

number of Medicaid beneficiaries 

served. We request comment on 

whether we should allow States the 

option to exclude, from their reporting 

to us, payments to providers that have 

low Medicaid revenues or serve a small 

number of Medicaid beneficiaries, based 

on Medicaid revenues for the service, 

the number of Medicaid beneficiaries 

receiving the service, or other Medicaid 

utilization data including but not 

limited to Medicaid bed days. We also 

request comment on whether we should 

establish a specific limit on such an 

exclusion and, if so, the specific limit 

we should establish, such as to limit the 

exclusion to providers in the lowest 5th, 

10th, 15th, or 20th percentile of 

providers in terms of Medicaid revenues 

for the service, number of Medicaid 

beneficiaries served, or other Medicaid 

utilization data (including but not 

limited to Medicaid bed days.) 

At § 442.43(c)(1), we propose that the 

reporting must provide information 

necessary to identify, at the facility 

level, the percent of Medicaid payments 

spent on compensation to: direct care 

workers at each nursing facility, support 

staff at each nursing facility, direct care 

workers at each ICF/IID, and support 

staff at each ICF/IID. We anticipate that 

States and providers would be able to 

obtain the information needed to 

calculate the percent of Medicaid 

payments made to direct care workers 

and support staff using data used in rate 

setting, internal wage information, cost 

reports, and resident census numbers 

(which would indicate the number of 

days residents had Medicaid-covered 

stays during the year.) However, we 

solicit comment on our proposal that 

information be reported at the facility 

level, particularly on any concerns 

about potential burden on providers and 

States. 

In constructing this proposal, we 

sought to balance the need for useful 

data with burden on States and 

providers, and we do not want to 

request more information than is 

necessary to get basic insight into the 

relationship between Medicaid 

payments and direct worker and 

support staff compensation. To that end, 

we are proposing to include in the 

reporting requirement the percentages of 

Medicaid payments to each nursing 

facility or ICF/IID that are going towards 

compensation to direct care workers and 

support staff at those facilities. 

However, we would consider adding to 

the proposed reporting requirements 

additional elements for States to report 

on median hourly compensation for 

direct care workers and median hourly 

compensation for support staff, in 

addition to the percent of Medicaid 

payments going to overall compensation 

for these workers. If commenters believe 

reporting on median compensation 

would yield useful information, we 

request that commenters also provide 

feedback on whether the reporting 

should be on salary/wages, or on total 

compensation (salary/wages and other 

remuneration, including employer 

expenditures for benefits and payroll 

taxes), and whether the information 

should be calculated for all direct care 

workers and for all support staff, or 

further broken down by the staff 

categories specified in our proposal at 

§ 442.43(a)(2) and (3). 

At § 442.43(c)(2), we propose that 

States must report the information 

required at § 442.43(c)(1) (the percent of 

Medicaid payment going to 

compensation for direct care workers 

and support staff and, if added to the 

provision, median hourly wages) 

according to a methodology that we 

provide. We believe it is important to 

have States use a consistent 

methodology when collecting and 

reporting information from facilities. If 

this proposal is finalized, we would 

specify a reporting methodology as part 

of the reporting instrument, which 

would be submitted separately for 

formal public comment under the 

processes set forth by the Paperwork 

Reduction Act. We are not proposing to 

codify a specific reporting methodology 

to allow for increased flexibility to 

refine and adapt the reporting 

methodology as States and CMS gain 

experience with the process. At this 

time, we solicit initial suggestions for an 

appropriate methodology for identifying 

the percentage of Medicaid payment 

that has gone to direct care worker and 

support staff compensation (noting that 

the underlying elements of the 

methodology could change should any 

final reporting requirements change in 

response to comments received on this 

proposed rule). We also solicit initial 

suggestions whether separate 

methodologies would be appropriate for 

base payments and supplemental 

payments, and if so, suggestions for 

each. Commenters who support adding 


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a requirement to report median hourly 

wages are also welcome to provide 

suggestions for a methodology for those 

calculations. 

To support our goal of transparency, 

we are considering adding a provision 

requiring that States make publicly 

available information about the 

underlying FFS payment rates 

themselves for nursing facility and ICF/ 

IID services. We believe it is likely that 

being able to view the reported 

information (percent of Medicaid 

payments going to compensation for 

direct care workers and support staff 

and, if added to the provisions, the 

median hourly wages) might be more 

meaningful if interested parties could 

review this data with the added context 

of information about typical nursing 

facility and ICF/IID FFS per diem 

payments in those States that use a FFS 

delivery model for these services. While 

we approve States’ FFS methodologies 

for setting the rates for nursing facility 

and ICF/IID services as part of the State 

plan amendment process, we do not 

currently require States to report the 

rates for these services. Further, the 

amounts can change over time without 

further State plan review according to 

the CMS-approved rate methodology 

(for example, when the State plan rate 

methodology is based on Medicare rates 

for services and not a fixed fee 

schedule). We have also heard from 

interested parties that members of the 

public would be interested in 

comparing the per diem rates nationally. 

Additionally, we have heard from 

providers that, as Medicaid payments to 

individual facilities may vary due to 

differences in acuity, add-on payments, 

or other factors, providers would be 

interested in comparing their own 

Medicaid revenues against an average or 

typical per diem rate in their State. We 

are considering adding to the proposed 

reporting provisions a requirement that, 

as applicable, States report a single 

average statewide FFS per diem rate 

(one reported rate for nursing facility 

services and one reported rate for ICF/ 

IID services.) If commenters agree that 

this information should be added to the 

reporting requirements, we request 

comment on whether the reported 

average should be the average of only 

the per diem base payment rates, or the 

average of the per diem base payment 

rates plus supplemental payments. We 

are weighing both options, as reporting 

on the average of the per diem base 

payment rate (without including 

supplemental payments) would provide 

an average that is more representative of 

the ‘‘typical’’ per diem rate (since not all 

facilities necessarily receive 

supplemental payments.) On the other 

hand, an average that includes both the 

per diem base payment rate and 

supplemental payments would provide 

a more complete picture of the total 

Medicaid spending on these services. 

We request comment on which option 

interested parties believe would provide 

the most useful snapshot of payment for 

these services. 

We do note that in the Ensuring 

Access to Medicaid Services proposed 

rule (88 FR 27960), we are proposing at 

§ 447.203(b)(1) that States publish all 

Medicaid FFS rates. This new proposed 

process would require States to publish 

their FFS Medicaid base payment rates 

in a clearly accessible, public location 

on the State’s website. In § 447.203(b)(2) 

and (3) of the Ensuring Access to 

Medicaid Services proposed rule, we 

proposed that States would be required 

to conduct a comparative payment rate 

analysis between the States’ Medicaid 

payment rates and Medicare rates for 

certain services, and provide a payment 

rate disclosure for certain HCBS that 

would include an average hourly rate 

for those specified HCBS. 

We believe that the proposal we are 

considering here is both complementary 

to, and distinguishable from, the 

proposals in the Ensuring Access to 

Medicaid Services proposed rule. The 

payment rate transparency proposal in 

the Ensuring Access to Medicaid 

Services proposed rule at 

§ 447.203(b)(1), while comprehensive, 

would request specifically payment 

rates made to providers delivering 

Medicaid services to Medicaid 

beneficiaries through the FFS delivery 

model. To the extent rates are bundled, 

we are proposing publication of 

unbundled rates by constituent service. 

This is distinct from the proposal in this 

proposed rule, which is proposing to 

examine per diem rates, solely in 

nursing facilities and ICF/IID. A per 

diem rate is akin to a bundled rate and 

typically is not reflective of the cost of 

an individual service; as such, the 

proposals generally would examine 

different payment rates. Additionally, 

the comparative payment rate analysis 

proposed in the Ensuring Access to 

Medicaid Services proposed rule at 

§ 447.203(b)(2) focuses on comparing to 

Medicare rates for specified services, 

which is not an element included in this 

proposal. Finally, the proposal in the 

Ensuring Access to Medicaid Services 

proposed rule at § 447.203(b)(3) that 

would require disclosure of hourly 

payment rates is for HCBS and would 

therefore not overlap with nursing 

facility and ICF/IID services. 

We also note that this potential 

reporting requirement would only be for 

FFS systems. For managed care 

programs, we are not considering 

requiring the public reporting of the 

contractually negotiated rates for 

individual providers. . 

We considered whether to propose a 

requirement that a minimum percentage 

of all Medicaid payments, including but 

not limited to base payments and 

supplemental payments, with respect to 

Medicaid-covered nursing facility 

services and ICF/IID services be spent 

on compensation to direct care workers 

and support staff. However, we do not 

have adequate information at this time 

to determine a minimum percentage of 

the payments for Medicaid-covered 

nursing facility services and ICF/IID 

services that should be spent on 

compensation for direct care workers 

and support staff. In consideration of 

potential future rulemaking, we request 

comment on whether we should require 

that a minimum percentage of the 

payments for Medicaid-covered nursing 

facility services and ICF/IID services be 

spent on compensation for direct care 

workers and support staff. We also 

request comment on whether such a 

requirement would be necessary to 

ensure that payment rates and 

methodologies are economic and 

efficient and consistent with meaningful 

beneficiary access to safe, high-quality 

care, or otherwise necessary for the 

proper and efficient operation of the 

State plan. Additionally, we request 

suggestions on the specific minimum 

percentage of payments for Medicaidcovered nursing facility services and 

ICF/IID services that should be required 

to be spent on compensation to direct 

care workers and support staff. If a 

minimum percentage is recommended, 

we request that commenters provide 

separate recommendations for nursing 

facility services and ICF/IID services 

and the rationale for each such 

minimum percentage that is 

recommended. We request that 

commenters provide data or evidence to 

support such recommendations, which 

we will review as part of our 

consideration of policy and rulemaking 

options. 

Based on our authority in sections 

1902(a)(6) and 1902(a)(30)(A) of the Act 

with respect to FFS, and sections 

1902(a)(4) and 1932(c) of the Act with 

respect to managed care plans, we are 

proposing new requirements to promote 

public transparency related to the 

administration of Medicaid-covered 

institutional services. We believe that 

promoting public transparency is an 

important first step for holding States 

accountable for ensuring that Medicaid 

payments are used in a way that is 

efficient and economic, to provide a 


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151CMS’s Medicaid and CHIP Scorecard. 

Accessed at https://www.medicaid.gov/stateoverviews/scorecard/index.html. 

foundation for future analyses of 

whether the payments are sufficient to 

enlist enough providers so that quality 

LTSS are available to the beneficiaries 

who want and require such care. 

Feedback from interested parties during 

various public engagement activities 

over the past several years has indicated 

that States do not routinely make 

publicly available information on the 

percent of payments that are going to 

the workforce, specifically. As a result, 

we believe that the proposal described 

immediately below is needed to support 

the efficient administration of Medicaid 

coverage of nursing facility and ICF/IID 

services by promoting public 

transparency and accountability related 

to the percent of payments for such 

services that goes to compensation to 

direct care workers and support staff. 

Specifically, at § 442.43(d), we 

propose to require States to operate a 

website that meets the availability and 

accessibility requirements at 

§ 435.905(b) of this chapter and that 

provides the results of the newly 

proposed reporting requirements in 

§ 442.43(b). We request comment on 

whether the proposed requirements at 

§ 435.905(b) are adequate to ensure the 

availability and the accessibility of the 

information for people receiving LTSS 

and other interested parties. We note 

that the accessibility and availability 

requirements set forth in § 435.905(b) 

focus on whether the language used on 

a website is accessible to computer 

users with disabilities or limited English 

proficiency. Other accessibility 

considerations, including the labelling 

of website links, ensuring the website 

content is up-to-date, or providing 

specific information about how users 

may access assistance are addressed in 

subsequent proposals below. 

At § 442.43(d)(1), we propose to 

require that the data and information 

that States are required to report in 

§ 442.43(b) be provided on one website, 

either directly or by linking to relevant 

information on the websites of the 

managed care plan that is contracted to 

cover nursing facility or IFC/IID 

services. We intend for the States to be 

ultimately responsible for ensuring 

compliance with the proposal, 

including to ensure through contractual 

arrangements with managed care plans, 

as applicable, that the proposed 

requirements are satisfied when 

required information is provided on 

websites maintained by these plans. 

Proposed § 442.43(d) contemplates that 

some States that provide nursing facility 

or ICF/IID services through managed 

care may decide to work with their 

managed care plans to make the 

reporting information available on the 

managed care plans’ websites, rather 

than replicating the information directly 

on the State’s website. We request 

comment on whether States should be 

permitted to link to websites of these 

managed care plans, and if so, whether 

we should limit the number of separate 

websites that a State could link to in 

place of directly reporting the 

information on its own website; or 

whether we should require that all the 

required information be posted directly 

on a website maintained by the State. 

At § 442.43(d)(2), we propose to 

require that the website include clear 

and easy to understand labels on 

documents and links. At § 442.43(d)(3), 

we propose to require that States verify 

the accurate function of the website and 

the timeliness of the information and 

links at least quarterly. We note here 

that the intent of § 442.43(d)(3) is to 

require that States ensure that the 

reporting information on their own 

website is up to date. We would also 

expect, if the State is linking to a 

managed care plan website, that the 

State ensure on at least a quarterly basis 

that the links are operational and 

continue to link to the information 

States are required to report in 

§ 442.43(b). We are not proposing to 

direct that managed care plans must 

also review their websites quarterly, but 

rather we expect that States would 

develop a process with their managed 

care plans to ensure that any reporting 

information contained on a managed 

care plan website is timely and accurate. 

If a State obtains information that a 

managed care plan website to which the 

State links as a means of publishing the 

required reporting information is not 

being maintained with timely updates 

for ongoing accuracy, we expect that the 

State would work with the relevant 

managed care plan to correct the 

situation and, if unsuccessful, would 

cease linking to that managed care 

plan’s website and would begin to post 

the required reporting information on a 

State-maintained website. We request 

comment on this proposal, including 

whether this timeframe for website 

review is sufficient or if we should 

require a shorter timeframe (monthly) or 

a longer timeframe (semi-annually or 

annually). 

At § 442.43(d)(4), we propose to 

require that States include prominent 

language on the website explaining that 

assistance in accessing the required 

information on the website is available 

at no cost to the public and include 

information on the availability of oral 

interpretation in all languages and 

written translation available in each 

non-English language, how to request 

auxiliary aids and services, and a tollfree and TTY/TDY telephone number. 

We request comment on whether these 

requirements are sufficient to ensure the 

accessibility of the information for 

people receiving nursing facility or ICF/ 

IID services and other interested parties. 

We are also proposing at § 442.43(e) 

that we must report on our website 

(Medicaid.gov or a successor website) 

the information reported by States to us 

under § 442.43(b). Specifically, we 

envision that we would update our 

website to provide information reported 

by each State on the percent of 

payments for Medicaid-covered services 

delivered by nursing facilities and ICF/ 

IIDs that is spent on compensation to 

direct care workers and support staff 

(and, if added to the provision, 

information on median hourly wages) 

which would allow the information to 

be compared across States and 

providers. We also envision using data 

from State reporting in future iterations 

of the CMS Medicaid and CHIP 

Scorecard.151 We note that if, based on 

public comment, we add a requirement 

that States provide information about 

their payment rates for nursing facility 

and ICF/IID services, we would provide 

this information on our website as a way 

of providing easy-to-find context for the 

other payment information reported by 

States. We currently do not intend to 

include the information on payment 

rates in the CMS Medicaid and CHIP 

Scorecard. 

We recognize that many States may 

need time to implement these 

requirements, including to amend 

provider agreements or managed care 

contracts, make State regulatory or 

policy changes, implement process or 

procedural changes, update information 

systems for data collection and 

reporting, or conduct other activities to 

implement these proposed payment 

transparency reporting requirements. 

We also expect that it would take a 

substantial amount of time for managed 

care plans and providers to establish the 

necessary systems, data collection tools, 

and processes necessary to collect the 

required information to report to States. 

As a result, we are proposing, at 

§ 442.43(f), to provide States with 4 

years to implement these requirements 

in FFS delivery systems following the 

effective date of the final rule. This 

proposed timeline reflects feedback 

from States and other interested parties 

that it could take 3 to 4 years for States 

to complete any necessary work to 

amend State regulations, policies, 

operational processes, information 


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152https://www.bls.gov/oes/current/naics4_

623100.htm. 

systems, and contracts to support 

implementation of the proposals 

outlined in this section. We invite 

comments on whether this timeframe is 

sufficient, whether we should require a 

shorter or longer timeframe (such as 3 

or 5 years) to implement these 

provisions, and if a shorter or longer 

timeframe is recommended, the 

rationale for that shorter or longer 

timeframe. 

In the context of Medicaid coverage of 

nursing facility and ICF/IID services, we 

believe that the foregoing reasons for the 

reporting requirements proposed in this 

rule apply to the delivery of these 

services regardless of whether they are 

covered directly by the State on an FFS 

basis or by a managed care plan for its 

enrollees. Accordingly, we are 

proposing to apply the requirements at 

§ 442.43 to both FFS and managed care 

delivery systems through incorporation 

by reference in a new regulation in 42 

CFR part 438, which generally governs 

Medicaid managed care programs. 

Specifically, we propose to add a crossreference to the requirements in 

proposed § 438.72(a) to be explicit that 

States that include nursing facility and/ 

or ICF/IID services in their MCO or 

PIHP contracts would have to amend 

their contracts to the extent necessary to 

comply with the requirements at 

§ 442.43 and propose at § 442.43(b) that 

payments from MCOs and PIHPs count 

as ‘‘Medicaid payments’’ for purposes of 

those requirements. We believe this 

would make the obligations of States 

that implement LTSS programs through 

a managed care delivery system clear 

and consistent with the State obligations 

for Medicaid FFS delivery systems. 

Additionally, for States with managed 

care delivery systems under the 

authority of sections 1915(a), 1915(b), 

1932(a), or 1115(a) of the Act and that 

include coverage of nursing facility 

services and/or ICF/IID services in the 

MCO’s or PIHP’s contract, we are 

proposing to provide States until the 

first managed care plan contract rating 

period that begins on or after the date 

that is 4 years after the effective date of 

the final rule to implement these 

requirements. We solicit feedback on 

the proposed application of the 

reporting requirement to managed care 

and the proposed effective date. We also 

invite comments on whether the 

proposed effective date timeframe is 

sufficient, whether we should require a 

longer timeframe (such as 5 years) to 

implement these provisions, and if a 

longer timeframe is recommended, the 

rationale for that longer timeframe. 

We expect that, should we finalize 

these reporting requirements, we would 

establish new processes and forms for 

States to meet the reporting 

requirements, provide additional 

technical information on how States can 

meet the reporting requirements, and 

establish new templates consistent with 

requirements under the Paperwork 

Reduction Act. We invite comment on 

this approach, particularly regarding 

any additional guidance we would need 

to provide or actions we would need to 

take to facilitate States’ implementation 

of these proposed provisions. 

Finally, in consideration of potential 

future rulemaking, we request comment 

on whether we should propose that 

States implement an interested parties’ 

advisory group in parallel with 

proposed requirements at 

§ 447.203(b)(6) in the Ensuring Access 

to Medicaid Services proposed rule (88 

FR 29260). Per the discussion in the 

Ensuring Access to Medicaid Services 

proposed rule at 88 FR 28024, we are 

proposing at § 447.203(a)(6) to require 

States to establish an interested parties 

advisory group to advise and consult on 

the sufficiency of FFS rates paid to 

direct care workers providing certain 

HCBS. We would be interested in 

hearing from the public if we should 

consider developing requirements for 

States to establish a similar group to 

advise and consult on nursing facility 

and ICF/IID service rates. 

IV. Collection of Information 

Requirements 

Under the Paperwork Reduction Act 

of 1995, we are required to provide 60- 

day notice in the Federal Register and 

solicit public comments before a 

collection of information requirement is 

submitted to the Office of Management 

and Budget (OMB) for review and 

approval. In order to fairly evaluate 

whether an information collection 

should be approved by OMB, section 

3506(c)(2)(A) of the Paperwork 

Reduction Act of 1995 requires that we 

solicit comment on the following issues: 

• The need for the information 

collection and its usefulness in carrying 

out the proper functions of our agency. 

• The accuracy of our estimate of the 

information collection burden. 

• The quality, utility, and clarity of 

the information to be collected. 

• Recommendations to minimize the 

information collection burden on the 

affected public, including automated 

collection techniques. 

In analyzing information collection 

requirements (ICRs), we rely heavily on 

wage and salary information. Unless 

otherwise indicated, we obtained all 

salary information from the May 2022 

National Occupational Employment and 

Wage Estimates, BLS at https://

www.bls.gov/oes/current/oes_nat.htm. 

We have calculated the estimated 

hourly rates in this proposed rule based 

upon the national mean salary for that 

particular position increased by 100 

percent to account for overhead costs 

and fringe benefits. The wage and salary 

data from the BLS do not include 

health, retirement, and other fringe 

benefits, or the rent, utilities, 

information technology, administrative, 

and other types of overhead costs 

supporting each employee. The HHS 

wide guidance on preparation of 

regulatory and paperwork burden 

estimates states that doubling salary 

costs is a good approximation for 

including these overhead and fringe 

benefit costs. 

Table 6 presents the BLS occupation 

code and title, the associated LTC 

facility staff position in this regulation, 

the estimated average or mean hourly 

wage, and the adjusted hourly wage 

(with a 100 percent markup of the salary 

to include fringe benefits and overhead 

costs). Where available, the mean hourly 

wage for Nursing Care Facilities (Skilled 

Nursing Facilities) 152 was used. 


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TABLE 6—SUMMARY INFORMATION OF ESTIMATED HOURLY COSTS

Occupation 

code BLS occupation title Associated position title in this regulation 

Mean hourly 

wage 

($/hour) 

Adjusted hourly 

wage (with 100% 

markup for fringe 

benefits & 

overhead) ($/hour) 

(rounded to 

nearest dollar) 

29–1141 ......... Registered Nurses (Nursing Care Facilities (Skilled Nursing Facilities)).Registered Nurse ................. $37.11 $74 

11–9111 ......... Medical and Health Services Managers (Nursing Care Facilities (Skilled Nursing Facilities)).Director of Nursing (DON) 

and Administrator.

49.91 100 

29–1216 ......... General Internal Medicine Physicians (General Medical 

and Surgical Hospitals).

Medical Director ................... 93.90 188 

43–6013 ......... Medical Secretaries and Administrative Assistants (General Medical and Surgical Hospitals).Administrative Assistant ....... 20.30 41 

29–1229 ......... Physician, All Other (Specialty (except Psychiatric and 

Substance Abuse)).

Medical Director ................... 135.86 272 

29–1031 ......... Dieticians and Nutritionists .................................................

(Nursing Care Facilities (Skilled Nursing Facilities)) ..........

Food and Nutrition Manager 31.63 63 

11–3013 ......... Facilities Manager ............................................................... Facilities Manager ................ 50.95 102 

29–2061 ......... Licensed Practical and Licensed Vocational Nurses 

(Nursing Care Facilities (Skilled Nursing Facilities)).

Licensed Nurse .................... 28.10 56 

31–1131 ......... Nursing Assistants (Nursing Care Facilities (Skilled Nursing Facilities)).Certified Nursing Assistance 

(CNA).

16.90 34 

We are soliciting public comments on 

each of these issues for the following 

sections of this document that contain 

information collection requirements 

(ICRs): 

A. ICRs Regarding § 483.35 Nursing 

Services 

At § 483.35(a), we propose that each 

LTC facility would have to provide 

services by sufficient numbers of each of 

the following types of personnel 

identified in this section on a 24-hour 

basis to provide nursing care to all 

residents in accordance with resident 

care plans. Except when exempted 

under paragraph (g) of this section, 

licensed nurses, including but not 

limited to 0.55 hours per resident day of 

registered nurses; and other nursing 

personnel, including but not limited to 

2.45 hours per resident day of NAs or, 

if necessary, LPNs. Except when waived 

under paragraph (e) of this section, each 

LTC facility must also have a RN on site 

24 hours per day, for 7 days a week that 

is available to provide direct resident 

care. 

These proposed requirements would 

require each LTC facility to review and 

modify, as necessary, its policies and 

procedures regarding nurse staffing. We 

believe the review and modifications to 

the necessary policies and procedures 

would require activities by the director 

of nursing (DON), an administrator, and 

an administrative assistant. The DON 

and the administrator would need to 

review the requirements, as well as the 

facility assessment, to determine if any 

changes are were necessary to the 

policies and procedures and, if so, make 

those necessary changes. The DON 

would then need to work with a medical 

administrative assistant to ensure that 

those changes were made to the 

appropriate documents and ensure that 

all appropriate individuals in the 

facility were made aware of the changes. 

We estimate that these activities would 

require 2 burden hours for an 

administrator at a cost of $200 ($100 × 

2), 3 hours for the DON at a cost of $300 

($100 × 3), and 1 hour for the 

administrative assistant at a cost of $41 

($41 × 1). Hence, for each LTC facility 

the burden estimate would be 6 hours 

(2 + 3+1) at a cost of $ 541 ($200 + $300 

+ $41). There are currently 14,688 LTC 

facilities. Thus, the burden for all LTC 

facilities would be 88,128 (14,688 × 6) 

hours at a cost of $7,946,208 ($541 × 

14,688 LTC facilities). 

B. ICRs Regarding § 483.71 Facility 

Assessment 

For the proposed new section, 

§ 483.71 Facility assessment, we 

propose to relocate the existing 

requirements at § 483.70(e) Facility 

assessment to the new § 483.71. We also 

propose to modify certain specific 

requirements and add a third section 

that will set forth the activities for 

which we expect LTC facilities to use 

their facility assessments. 

We are proposing to relocate current 

§ 483.70(e)(1) (i) through (v) to 

§ 483.71(a)(1)(i) through (v). This 

section sets forth what the facility 

assessment must address or include, but 

is not limited to, regarding the facility’s 

resident population. At 

§ 483.71(a)(1)(ii), we propose to add 

‘‘using evidence-based, data-driven 

methods’’ and ‘‘behavioral health 

issues’’ so that the requirement would 

now read, ‘‘(ii) The care required by the 

resident population, using evidencebased, data driven methods that 

consider the types of diseases, 

conditions, physical and behavioral 

health issues, cognitive disabilities, 

overall acuity, and other pertinent facts 

that are present within that 

population;’’. At § 483.71(a)(1)(iii), we 

propose to add, ‘‘and skill sets’’ so the 

requirement reads, (iii) The staff 

competencies and skill sets that are 

necessary to provide the level and types 

of care needed for the resident 

population. We believe these 

modifications constitute clarifications in 

the requirements and are not new 

requirements for which the LTC 

facilities must comply. Hence, we will 

not be analyzing any new or additional 

burden related to these changes. 

We propose to relocate the current 

requirements at § 483.70(e)(2)(i) through 

(vi) to § 483.71(a)(2)(i) through (vi). At 

§ 483.71(a)(2)(iii), we propose to add 

‘‘behavioral health’’ so that the 

requirement reads, (iii) Services 

provided, such as physical therapy, 

pharmacy, behavioral health, and 

specific rehabilitation therapies. 

Behavioral health services requirements 

are set forth at § 483.40 and are integral 

to the health of residents. All LTC 

facilities should be considering the 

behavioral health care needs of their 

residents. Hence, this change does not 

constitute a new requirement but a 

clarification. Hence, we will not be 


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analyzing any new or additional burden 

related to this change. 

We propose to add a new requirement 

at § 483.71(a)(4) for LTC facilities to 

incorporate the input of facility staff and 

their representatives into their facility 

assessment. These staff categories 

include, but are not limited to, nursing 

home leadership, management, direct 

care staff and representatives and other 

service workers. We believe that LTC 

facilities already include many of these 

categories of individuals when they 

conduct or update their facility 

assessments. Thus, this requirement 

constitutes a clarification and not a new 

requirement. Hence, we will not be 

analyzing any new or additional burden 

related to this change. 

We propose to add new requirements 

at § 483.71(b). These requirements set 

forth specific activities for which the 

LTC facilities would be expected to use 

their facility assessments. These 

assessments would inform staffing 

decisions to ensure that a sufficient 

number of staff with the appropriate 

competencies and skill sets necessary to 

care for its residents’ needs as identified 

through resident assessments and plans 

of care as required in § 483.35(a)(3); 

consider specific staffing needs for each 

resident unit in the facility, and adjust 

as necessary based on changes its to 

resident population; consider specific 

staffing needs for each shift, such as 

day, evening, night, and adjust as 

necessary based on any changes to its 

resident population; and, develop and 

maintain a plan to maximize 

recruitment and retention of direct care 

staff. 

We believe that LTC facilities are 

either already using their facility 

assessments for these activities or will 

be based upon the other requirements in 

this proposed rule, except for using 

their facility assessments to develop and 

maintain a plan to maximize 

recruitment and retention of direct care 

staff. Based upon our experience with 

LTC facilities, these facilities are already 

working on recruitment and retention of 

direct care staff. However, we also 

believe these facilities would need to 

review their current efforts to determine 

if there are opportunities to improve 

their efforts and, if so, decide how to do 

so. The LTC facility’s facility assessment 

would require the development of a 

plan to maximize recruitment and 

retention and accomplish the associated 

tasks and would also be an invaluable 

tool in assessing and maintaining 

sufficient staff for their facility. 

The staff involved in developing this 

plan would vary by the type of care and 

services provided by the individual 

facilities. Some LTC facilities might 

have various therapists on staff, such as 

physical and occupational therapists. 

Others might employ psychologists, 

social workers, or complementary 

medicine or American Indian/Alaska 

Native Traditional Healers who provide 

behavioral health services to residents. 

When developing a recruitment and 

retention plan, we encourage LTC 

facilities to include participation, or at 

least input, from the various types of 

direct care staff in their facilities and 

representatives of these workers, 

although the hours worked by those 

staff cannot be used as substitutes for 

the direct care minimums for RNs and 

NAs required under this rule. All LTC 

facilities provide 24-hour nursing 

services and the direct care nursing staff 

would include RNs, other licensed 

nurses (LPNs or LVNs), and nursing 

assistants (NAs). For the purpose of 

estimating the burden for developing a 

recruitment and retention plan, we 

estimate the burden for an 

administrator, the DON, and one 

individual from each of the nursing 

categories, an RN, LPN/LVN, and NA to 

develop the plan. These individuals 

would have to meet to develop a plan 

and then the administrator will need to 

obtain approval for the plan from the 

governing body. During the 

development process and after approval, 

an administrative assistant would need 

to provide support and ensure the plan 

is disseminated and save appropriately 

in the facility’s records. We estimate 

that developing a recruitment and 

retention plan would require 6 hours for 

an administrator at a cost of $600 ($100 

× 6); 6 hours for the DON at a cost of 

$600 ($100 × 6); 4 hours for a registered 

nurse at a cost of $296 ($74 × 4); 2 hours 

for a LPN/LVN at a cost of $112 ($56 × 

2); 2 hours for a nursing assistant at a 

cost of $68 ($34 × 2); and, 2 hours for 

an administrative assistant $82 ($41 x 

2). Thus, the burden for each LTC 

facility is 22 (6 + 6 + 4 + 2 + 2 + 2) hours 

at an estimated cost of $1,758 ($ 600 + 

$600 + $296 + $112 + $68 + 82). For all 

14,688 LTC facilities the burden would 

be 323,136 hours (14,688 LTC facilities 

x 22) at an estimated cost of $25,821,504 

($1,758 × 14,688 LTC facilities). We are 

requesting comment on our estimated 

number of burden hours for the 

proposal for each of the activities and 

total annual burden and cost for each 

facility. 

Hence, the total estimated burden for 

the ICRs in part 483 is 411,264 (88,128 

+ 323,136) hours at a cost of 

$33,767,712 ($7,946,208+ $25,821,504). 

The burden will be included in this 

revised Information Collection Request 

under the OMB control number 0938– 

1363; Expiration date: April 30, 2026. 

C. ICR Related to Medicaid Institutional 

Payment Transparency 

1. Wage Estimates 

To derive average costs, we used data 

from the U.S. Bureau of Labor Statistics 

(BLS) May 2022 National Occupational 

Employment and Wage Estimates for all 

salary estimates (http://www.bls.gov/ 

oes/current/oes_nat.htm). In this regard, 

Table 7 presents BLS’s mean hourly 

wage, our estimated cost of fringe 

benefits and other indirect costs 

(calculated at 100 percent of salary), and 

our adjusted hourly wage. 

TABLE 7—NATIONAL OCCUPATIONAL EMPLOYMENT AND WAGE ESTIMATES

Occupation title Occupation 

code 

Mean hourly 

wage 

($/hr) 

Fringe 

benefits and 

overhead 

($/hr) 

Adjusted 

hourly wage 

($/hr) 

Administrative Services Manager .................................................................... 11–3012 55.59 55.59 111.18 

Chief Executive ................................................................................................ 11–1011 118.48 118.48 236.96 

Compensation, Benefits, and Job Analyst ....................................................... 13–1141 36.50 36.50 73.00 

Computer Programmer .................................................................................... 15–1251 49.42 49.42 98.84 

General and Operations Manager ................................................................... 11–1021 59.07 59.07 118.14 

Management Analyst ....................................................................................... 13–1111 50.32 50.32 100.64 

Training and Development Specialist .............................................................. 13–1151 33.59 33.59 67.18 


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153Note that due to waiver under section 1902(j) 

of the Social Security Act, American Samoa and the 

Commonwealth of the Northern Marianas Islands 

are not required to include nursing facility services 

in their State plans and thus are not included in 

these estimates. Additionally, no territory currently 

includes the optional ICF/IID benefit in their State 

plan. 

For States and the private sector, our 

employee hourly wage estimates have 

been adjusted by a factor of 100 percent. 

This is necessarily a rough adjustment, 

both because fringe benefits and other 

indirect costs vary significantly across 

employers, and because methods of 

estimating these costs vary widely 

across studies. Nonetheless, we believe 

that doubling the hourly wage to 

estimate total cost is a reasonably 

accurate estimation method. 

To estimate the financial burden on 

States related to the proposed Medicaid 

Institutional Payment Transparency 

Reporting provisions (discussed below), 

it was important to consider the Federal 

government’s contribution to the cost of 

administering the Medicaid program. 

The Federal government provides 

funding based on a Federal medical 

assistance percentage (FMAP) that is 

established for each State, based on the 

per capita income in the State as 

compared to the national average. 

FMAPs range from a minimum of 50 

percent in States with higher per capita 

incomes to a maximum of 83 percent in 

States with lower per capita incomes. 

For Medicaid, all States receive a 50 

percent FMAP for administration. States 

also receive higher Federal matching 

rates for certain systems improvements, 

redesign, or operations. Taking into 

account the Federal contribution to the 

costs of administering the Medicaid 

programs for purposes of estimating 

State burden with respect to collection 

of information, we elected to use the 

higher end estimate that the States 

would contribute 50 percent of the 

costs, even though the burden would 

likely be much smaller. We are 

requesting comment on our estimated 

number of burden hours for the 

proposal for each of the activities and 

total annual burden and cost for each 

facility. 

3. Proposed Information Collection 

Requirements (ICRs) 

The following proposed changes will 

be submitted to OMB for their approval 

when our survey instrument has been 

developed; we are using feedback from 

this proposed rule to inform the 

development of the survey instrument. 

The survey instrument and burden will 

be made available to the public for their 

review under the standard non-rule PRA 

process which includes the publication 

of 60- and 30-day Federal Register 

notices. In the meantime, we are setting 

out our preliminary burden figures (see 

below) as a means of scoring the impact 

of this rule’s proposed changes. The 

availability of the survey instrument 

and more definitive burden estimates 

will be announced in both Federal 

Register notices. The CMS ID number 

for that collection of information request 

is CMS–10851 (OMB control number 

0938–TBD). Since this would be a new 

collection of information request, the 

OMB control number has yet to be 

determined (TBD) but will be issued by 

OMB upon their approval of the new 

collection of information request. Note 

that we intend that the following 

proposed changes associated with 

§§ 442.43(b), (c), and (d), discussed later 

in this section, will be submitted to 

OMB for review as a single PRA package 

under control number 0938–TBD (CMS– 

10851). 

a. State and Provider Burden Under 

§ 442.43(b) and (c)—Payment 

Transparency Reporting 

As discussed in section III. of this 

proposed rule, under our authority at 

sections 1902(a)(6) and 1902(a)(30)(A) 

with respect to FFS, and sections 

1902(a)(4) and 1932(c) of the Act with 

respect to managed care, we are 

proposing new reporting requirements 

at § 442.43(b) for States to report 

annually on the percent of payments for 

Medicaid-covered services delivered by 

nursing facilities and ICF/IIDs that are 

spent on compensation for direct care 

workers and support staff. (Our 

proposed definitions of who is included 

in direct care workers and support staff, 

at proposed §§ 442.43(a)(2) and (3), 

respectively, are discussed in the 

preamble in section III. of this proposed 

rule.) The intent of this proposed 

requirement is for States to report 

separately, by delivery system and at the 

provider level, on the percent of 

payments for nursing facility services 

that are spent on compensation to direct 

care workers, the percent of payments 

for nursing facility services that are 

spent on compensation to support staff, 

the percent of payments for ICF/IID 

services that are spent on compensation 

to direct care workers, and the percent 

of payments for ICF/IID services that are 

spent on compensation to support staff. 

We propose to add a cross-reference to 

the requirements in proposed § 438.72 

to specify that States that include 

nursing facility and ICF/IID services in 

their contracts with managed care 

organizations (MCOs) or prepaid 

inpatient health plans (PIHPs) would 

have to comply with the requirements at 

§ 442.43(b). Where they appear, 

references to the proposed requirements 

at § 442.43(b) apply to both FFS and 

managed care delivery systems. 

We are considering adding to the 

proposed reporting requirements 

additional elements for States to report 

on median hourly compensation for 

direct care workers and median hourly 

compensation for support staff, in 

addition to the percent of Medicaid 

payments going to overall compensation 

for these workers. Although we may not 

finalize these additional reporting 

requirements, we will include them in 

our cost estimate to avoid 

underestimating the costs of this 

proposal. If finalized, we expect that 

these additional reporting requirements 

would also apply to both FFS and 

managed care delivery systems. 

We are also considering adding at 

§ 442.43(c) a provision requiring that 

States make publicly available 

information about the underlying FFS 

payment rates themselves for nursing 

facility and ICF/IID services. If the 

proposal was finalized, we would 

require that States report a single 

average statewide FFS per diem rate 

(one reported rate for nursing facility 

services and one reported rate for ICF/ 

IID services) as part of the reporting 

requirement required at § 442.43(b). 

Again, to avoid underestimating, we are 

including the estimated cost of this 

potential additional requirement in our 

cost estimates. 

(1) State Institutional Payment 

Transparency Reporting Requirements 

and Burden 

The burden associated with the 

proposed reporting requirements would 

affect all 51 States (including 

Washington DC). While not all States 

cover ICF/IID services (because it is an 

optional Medicaid benefit), all States 

must offer Medicaid nursing facility 

services (because it is a mandatory 

Medicaid benefit). Thus, we anticipate 

that all 51 States (including 

Washington, DC) would participate in 

the reporting requirements proposed at 

§ 442.43(b). Additionally, three 

territories (Guam, Puerto Rico, and the 

U.S. Virgin Islands) are required to 

include nursing facility services in their 

State plans, and thus will be included 

in these calculations as well.153 While 

we will include these territories in our 

cost estimates, we will continue to refer 

to the affected entities collectively as 

‘‘States’’. We estimate both a one-time 

and ongoing burden to States to 

implement these requirements at the 

State level. 


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154As discussed in section III. of this proposed 

rule, if finalized, the proposal to report per diem 

rates for nursing facility and ICF/ID services would 

only be applied to FFS rates. If finalized, this 

proposal would not apply to States that deliver 

nursing facility and ICF/IID services solely through 

managed care. However, some States with managed 

care delivery systems still pay for some LTSS under 

a FFS delivery system. For the purposes of this 

estimate, we are assuming all States will be 

participating in this reporting requirement, even 

though the requirement might apply to fewer than 

54 States upon implementation. 

155 Data taken from Centers for Medicare & 

Medicaid Services, ‘‘Managed Long Term Services 

and Supports (MLTSS) Enrollees,’’ available at 

https://data.medicaid.gov/dataset/5394bcab-c748- 

5e4b-af07-b5bf77ed3aa3. 

One-Time Reporting Requirements and 

Burden (§ 442.43(b)): States 

Under proposed § 442.43(b) and (c), 

we anticipate as one-time burdens that 

States, through their designated State 

Medicaid agency, would have to: (1) 

draft new policy describing the Statespecific reporting process (one-time); (2) 

update any related provider manuals 

and other policy guidance (one-time); 

(3) build, design, and operationalize an 

electronic system for data collection and 

aggregation (one-time); (4) identify the 

information that would be needed to 

report the State’s per diem rates, if that 

additional proposal is finalized (onetime); and (5) develop and conduct an 

initial training for providers on the 

reporting requirement and Statedeveloped reporting system (one-time). 

We note that we are not proposing to 

require that States update their 

Medicaid State plans as part of this 

reporting requirement, and thus we are 

not estimating a burden associated with 

State plan amendments. 

With regard to this one-time burden 

for States, we estimate it would take: 40 

hours at $111.18/hr. for an 

administrative services manager to draft 

new policy describing the State-specific 

reporting process; 14 hours at $100.64/ 

hr. for a management analyst to update 

any related provider manuals and other 

policy guidance; an additional 1 hour at 

$100.64/hr. for a management analyst to 

identify what information will be 

needed to report a FFS per diem rate for 

nursing facility and ICF/IID services,154

if the additional reporting requirement 

is finalized; 25 hours at $98.84/hr. for a 

computer programmer to build, design, 

and operationalize an electronic system 

for data collection on the percent of 

Medicaid payments going to 

compensation and (if finalized) median 

hourly compensation, including data 

aggregation and stratification by 

provider, provider type, and worker 

type (direct care worker or support 

staff); 30 hours at $67.18/hr. for a 

training and development specialist to 

develop and conduct training for 

providers on the reporting requirement 

and system; 3 hours at $118.14/hr. for 

a general and operations manager to 

review and approve policy updates, 

provider agreement updates, and 

training materials; and 1 hour at 

$236.96/hr. for a chief executive to 

review and approve all operations 

associated with this requirement. 

In addition to these activities outlined 

above, States may also have to update 

managed care contracts to reflect the 

new reporting requirement and provide 

managed care-specific guidance on the 

reporting requirement. Recent data 

indicates that 24 States provide at least 

some long-term services through 

managed care.155 For the managed carespecific burden, we estimate 10 hours at 

$111.18/hr. for an administrative 

services manager to draft updates to 

managed care contracts. (We anticipate 

that all other State activities associated 

with managed care plans would be 

reflected in the activities described 

previously in this section.) 

In aggregate, we estimate a one-time 

burden of 6,396 hours [(114 hr. × 54 

States) + (10 × 24 States)]. We estimate 

a cost of $595,867 (54 States × [(40 hr. 

× $111.18) + (15 hr. × $100.64) + (25 hr. 

× $98.84) + (30 hr. × $67.18) + (3 hr. × 

$118.14) + (1 hr. × $236.96)]), with an 

additional $26,683 for managed carerelated costs (24 States × [10 hr. × 

$100.64]). The total cost is estimated at 

$622,551 ($595,867 + $26,683). Taking 

into account the Federal contribution to 

Medicaid administration, the estimated 

State share of the cost would be 

$311,275 ($622,551 × 0.50). 

TABLE 8—SUMMARY OF ONE-TIME BURDEN FOR STATES FOR THE MEDICAID INSTITUTIONAL PAYMENT TRANSPARENCY

REPORTING REQUIREMENTS AT § 442.43(b) 

Requirement Number 

respondents 

Total 

responses Frequency 

Time per 

response 

(hr.) 

Total time 

(hr.) 

Wage ($/ 

hr.) 

Total cost 

($) 

State 

share 

($) 

Draft new policy describing the State-specific reporting process.54 54 Once ........ 40 2,160 111.18 240,149 120,074 

Update any related provider manuals and other policy guidance.54 54 Once ........ 14 756 100.64 76,084 38,042 

Identify information needed for per diem rate reporting ......... 54 54 Once ........ 1 54 100.64 5,435 2,717 

Build, design, and operationalize an electronic system for 

data collection, aggregate, and stratify reporting.

54 54 Once ........ 25 1,350 98.84 133,434 66,717 

Develop and conduct training for providers on the reporting 

requirement and system.

54 54 Once ........ 30 1,620 67.18 108,832 54,416 

Review and approve policy updates and training materials ... 54 54 Once ........ 3 162 118.14 19,139 9,569 

Review and approve all operations associated with this requirement.54 54 Once ........ 1 54 236.96 12,796 6,398 

Draft contract modifications for managed care plans ............. 24 24 Once ........ 10 240 111.18 26,683 13,342 

Total .................................................................................. Varies 402 Once ........ Varies 6,396 Varies 622,551 311,275 

Ongoing Reporting Requirements and 

Burden (§ 442.43(b)): States 

Under proposed § 442.43(b), we 

estimate as ongoing burdens that States 

would: (1) notify and train nursing 

facility and ICF/IID providers about the 

annual reporting requirement, including 

the State-level process for collecting 

data (ongoing); (2) collect information 

from providers annually (ongoing); (3) 

aggregate or stratify data as needed 

(ongoing); (4) derive percentages for 

compensation (ongoing); and (5) 

develop a report for CMS on an annual 

basis (ongoing). 

With regard to the ongoing burden, 

we estimate it would take: 8 hours at 

$67.18/hr. for a training and 

development specialist to notify and 

train providers about annual reporting 

requirement; 2 hours at $100.64 for a 

management analyst to gather the State’s 

information needed to include per diem 


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rates for the State’s FFS nursing facility 

and ICF/IID services (if finalized); 6 

hours at $98.84/hr. for a computer 

programmer to collect information from 

providers, aggregate data as needed, 

derive percentages for compensation, 

and develop a report for the State; 2 

hours at $118.14/hr. by a general and 

operations manager to review, verify, 

and submit the report to CMS; and 1 

hour at $236.96/hr. for a chief executive 

to review and approve all operations 

associated with this requirement. 

In aggregate, we estimate an ongoing 

burden of 1,026 hours (19 hr. × 54 

States) at a cost of $97,470 (54 States × 

[(8 hr. × $67.18) + (2 hr. × $100.64) + 

(6 hr. × $98.84) + (2 hr. × $118.14) + (1 

hr. × $236.96)]. Taking into account the 

Federal contribution to Medicaid 

administration, the estimated State 

share of this cost would be $48,735 

($97,470 × 0.50) per year. 

TABLE 9—SUMMARY OF ONGOING BURDEN FOR STATES FOR THE MEDICAID INSTITUTIONAL PAYMENT TRANSPARENCY

REPORTING REQUIREMENTS AT § 442.43(b) 

Requirement Number 

respondents 

Total 

responses Frequency 

Time per 

response 

(hr.) 

Total time 

(hr.) 

Wage 

($/hr.) 

Total cost 

($) 

State 

share 

($) 

Notify and train providers about annual reporting requirement 54 54 Annually .. 8 416 67.18 29,022 14,511 

Gather information needed to report State FFS per diem 

rates.

54 54 Annually .. 2 108 100.64 10,869 5,435 

Collect information from providers; aggregate data as required; derive an overall percentage for compensation; 

and develop report for State.

54 54 Annually .. 6 312 98.84 32,024 16,012 

Review, verify, and submit report to CMS .............................. 54 54 Annually .. 2 104 118.14 12,759 6,380 

Review and approve all operations associated with this requirement.54 54 Annually .. 1 52 236.96 12,796 6,398 

Total .................................................................................. 54 270 Annually .. Varies 1,026 Varies 97,470 48,735 

(2) Nursing Facility and ICF/IID 

Institutional Payment Transparency 

Reporting Requirements and Burden 

The burden associated with this 

proposed rule would affect nursing 

facility and ICF/IID providers in both 

FFS and managed care systems. We 

estimate both a one-time and ongoing 

burden to implement the reporting 

requirement proposed at § 442.43(b). 

To estimate the number of nursing 

facility and ICF/IID providers that 

would be impacted by this proposed 

rule, we used data from the CMS 

Quality Certification and Oversight 

Reports (QCOR) system (qcor.cms.gov) 

to identify the total number of 

Medicaid-certified nursing facilities and 

ICF/IIDs in all States (including 

Washington DC) and the three territories 

that are required to include nursing 

facility services in their State plan. Data 

from QCOR indicates that in FY 2022, 

there were 14,194 freestanding 

Medicaid-certified nursing facilities 

(including facilities dually certified for 

both Medicare and Medicaid, and 

Medicaid-only facilities). Additionally, 

in FY 2022, there were 5,713 ICF/IIDs. 

In total, we estimate 19,907 Medicaidcertified nursing facilities and ICF/IIDs 

that could be impacted by this proposed 

reporting requirement and may need to 

provide data to the State on what 

percentage of their Medicaid 

reimbursements for nursing facility and 

ICF/IID services went to direct care 

worker and support staff compensation. 

Under proposed § 442.43(b), we 

anticipate that nursing facilities and 

ICF/IIDs would need to: (1) learn the 

State-specific reporting policies and 

process (one-time); (2) calculate 

compensation for each direct care 

worker and support staff if they do not 

already have that information readily 

available (one-time); and (3) build, 

design and operationalize an internal 

system for developing the report for the 

State (one-time). We note that we do not 

anticipate any additional burden on 

providers associated with the proposed 

additional reporting requirements (to 

report median hourly wages and the 

State’s FFS per diem rates). We expect 

that States would be able to calculate 

median hourly wages based on the 

information collected from providers. 

We also believe the State, not, 

providers, would have the information 

needed to report the State’s FFS per 

diem rates for nursing facility and ICF/ 

IID services. 

One-Time Reporting Requirements and 

Burden (§ 442.43(b)): Nursing Facility 

and ICF/IID Providers 

With regard to the one-time burden 

for providers, we estimate it would take: 

10 hours at $73.00/hr. for a 

compensation, benefits, and job analysis 

specialist to learn the State-specific 

reporting policy and calculate 

compensation for each direct care 

worker and support staff; 10 hours at 

$98.84/hr. for a computer programmer 

to build, design, and operationalize an 

internal system for developing the 

report for the State; and 1 hour at 

$118.14/hr. for a general and operations 

manager to review and approve the 

reporting system. In aggregate, we 

estimate a one-time burden of 418,047 

hours (19,907 facilities × 21 hr.) at a cost 

of $36,560,002 (19,907 providers × [(10 

hr. × $73.00) + (10 hr. × $98.84) + (1 hr. 

× $118.14)]. 

TABLE 10—SUMMARY OF ONE-TIME BURDEN FOR NURSING FACILITIES AND ICF/IIDS FOR THE MEDICAID INSTITUTIONAL

PAYMENT TRANSPARENCY REPORTING REQUIREMENTS AT § 442.43(b) 

Requirement Number 

respondents 

Total 

responses Frequency 

Time per 

response 

(hr.) 

Total time 

(hr.) 

Wage 

($/hr.) 

Total cost 

($) 

State 

share 

($) 

Learn State-specific reporting policy; calculate compensation for each direct care worker and support staff.19,907 19,907 Once ....... 10 199,070 73.00 14,532,110 n/a 

Build, design, and operationalize an internal system for 

developing the report for the State.

19,907 19,907 Once ....... 10 199,070 98.84 19,676,079 n/a 

Review and approve reporting system ................................ 19,907 19,907 Once ....... 1 19,907 118.14 2,351,813 n/a 

Total .............................................................................. 19,907 59,721 Once ....... Varies 418,047 Varies 36,560,002 n/a 


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Ongoing Reporting Requirements and 

Burden (§ 442.43(b)): Nursing Facility 

and ICF/IID Providers 

With regard to the ongoing burden, 

we anticipate nursing facilities and ICF/ 

IIDs would have to: (1) update 

compensation calculations to account 

for on-going staffing changes among 

direct care workers and support staff (in 

other words, ensure their system 

includes newly hired direct care 

workers or support staff and takes into 

account staff departures); (2) calculate 

the aggregated compensation of direct 

care workers and support staff as a 

percentage of their annual Medicaid 

claims (ongoing); and (3) report the 

information to the State annually 

(ongoing). 

We estimate it would take 8 hours at 

$73.00/hr. for a compensation, benefits, 

and job analysis specialist to update 

compensation calculations to account 

for staffing changes; 2 hours at $98.84/ 

hr. for a computer programmer to 

calculate compensation, aggregate data, 

and report to the State as required; and 

1 hour at $118.14/hr. for a general and 

operations manager to review, approve, 

and submit the report to the State. In 

aggregate, we estimate an on-going 

burden of 218,977 hours (19,907 

providers × 11 hr.) at a cost of 

$17,912,717 (19,907 facilities × [(8 hr. × 

$73.00) + (2 hr. × $98.84) + (1 hr. × 

$118.14)]. 

TABLE 11—SUMMARY OF ONGOING BURDEN FOR NURSING FACILITY AND ICF/IIDS FOR THE MEDICAID INSTITUTIONAL

PAYMENT TRANSPARENCY REPORTING REQUIREMENTS AT § 442.43(b) 

Requirement Number 

respondents 

Total 

responses Frequency 

Time per 

response 

(hr.) 

Total time 

(hr.) 

Wage 

($/hr.) 

Total cost 

($) 

State 

share 

($) 

Account for staffing changes among employees and contracted employees.19,907 19,907 Annually .. 8 159,256 73.00 11,625,688 n/a 

Calculate compensation, aggregate data, and report to the 

State.

19,907 19,907 Annually .. 2 39,814 98.84 3,935,216 n/a 

Review, approve, submit report to the State ....................... 19,907 19,907 Annually .. 1 19,907 118.14 2,351,813 n/a 

Total .............................................................................. 19,907 59,721 Annually .. Varies 218,977 Varies 17,912,717 n/a 

b. State Website Posting Requirements 

and Burden (§ 442.43(d)) 

At § 442.43(d), we propose to require 

States to operate a website that meets 

the availability and accessibility 

requirements at § 435.905(b) of this 

chapter and that provides the results of 

the newly proposed reporting 

requirements in § 442.43(b). We also 

propose at § 442.43(d) that States must 

verify, no less than quarterly, the 

accurate function of the website and the 

timeliness of the information and links. 

As noted above, we anticipate that 

this provision would affect all 51 States 

(including Washington, DC) and the 

territories required to have nursing 

facility services in their State plans 

which we refer to collectively as 

‘‘States.’’. We estimate both a one-time 

and ongoing burden to implement these 

requirements at the State level, which 

would be the same regardless of 

whether the State offers nursing facility 

and ICF/IID services through FFS or 

managed care systems. In developing 

our burden estimate, we assumed that 

States would provide the data and 

information that States are required to 

report under newly proposed 

§ 442.43(d) by adding to an existing 

website, rather than developing an 

entirely new website to meet this 

requirement. We note that we are not 

proposing to require that States update 

their Medicaid State plans as part of this 

reporting requirement and are not 

estimating a burden associated with 

State plan amendments. We are also not 

anticipating an additional website 

burden associated with the possible 

additional reporting requirements (to 

report median hourly wage and to report 

the State’s FFS per diem rates) 

discussed previously in this section as 

this information, if finalized, would be 

integrated into the other website posting 

activities. 

One Time Website Posting 

Requirements and Burden (§ 442.43(d)): 

States 

With regard to the one-time burden, 

based on the website requirements, we 

estimate it would take: 10 hours at 

$111.18/hr. for an administrative 

services manager to determine the 

content of the website; 30 hours at 

$98.84/hr. for a computer programmer 

to develop the website; 1 hour at 

$118.14/hr. for a general and operations 

manager to review and approve the 

website; and 1 hour at $236.96/hr. for a 

chief executive to review and approve 

the website. In aggregate, we estimate a 

one-time burden of 2,268 hours (54 

States × 42 hr.) at a cost of $239,333 (54 

States × [(10 hr. × $111.18) + (30 hr. × 

$98.84) + (1 hr. × $118.14) + (1 hr. × 

$236.96)]. Taking into account the 

Federal contribution to Medicaid 

administration, the estimated State 

share of this cost would be $119,667 

($239,333 × 0.50) per year. 

TABLE 12—SUMMARY OF THE ONE-TIME BURDEN FOR STATES FOR THE WEBSITE POSTING REQUIREMENTS AT § 442.43(f) 

Requirement Number 

respondents 

Total 

responses Frequency 

Time per 

response 

(hr.) 

Total time 

(hr.) 

Wage 

($/hr.) 

Total cost 

($) 

State 

share 

($)/year 

Determine content of website .................................................. 54 54 Once ........ 10 540 111.18 60,037 30,019 

Develop website ...................................................................... 54 54 Once ........ 30 1,620 98.84 160,121 80,060 

Review and approve the website at the management level ... 54 54 Once ........ 1 54 118.14 6,380 3,190 

Review and approve the website at the executive level ......... 54 54 Once ........ 1 54 236.96 12,796 6,398 

Total .................................................................................. 54 216 Once ........ Varies 2,268 Varies 239,333 119,667 


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Federal Register / Vol. 88, No. 171 / Wednesday, September 6, 2023 / Proposed Rules 61397 

156https://data.cms.gov/summary-statistics-onuse-and-payments/medicare-service-type-reports/ 

cms-program-statistics-medicare-skilled-nursingfacility. 

157Ochieng, N., Chidambaram, P., Musumeci, M. 

Nursing Facility Staffing Shortages During the 

COVID–19 Pandemic. Apr 04, 2022. Kaiser Family 

Foundation. Accessed at https://www.kff.org/ 

coronavirus-covid-19/issue-brief/nursing-facilitystaffing-shortages-during-the-covid-19-pandemic/. 

158Harrington, C., Carrillo, H., Garfield, R., 

Squires, E. Nursing Facilities, Staffing, Residents 

and Facility Deficiencies, 2009 Through 2016. Apr 

03, 2018. Kaiser Family Foundation. Accessed at 

https://www.kff.org/report-section/nursingfacilities-staffing-residents-and-facility-deficiencies2009-through-2016-staffing-levels/. 

159Min A, Hong HC. Effect of nurse staffing on 

rehospitalizations and emergency department visits 

among short-stay nursing home residents: A Crosssectional study using the US Nursing Home 

Compare database. Geriatr Nurs. 2019 MarApr;40(2):160–165. doi: 10.1016/ 

j.gerinurse.2018.09.010. Epub 2018 Oct 4. PMID: 

30292528. 

Ongoing Website Posting Requirements 

and Burden (§ 442.43(d)): States 

With regard to the States’ ongoing 

burden related to the website 

requirement, per quarter we estimate it 

would take: 2 hours at $111.18/hr. for 

an administrative services manager to 

provide any updated data and 

information for posting and to verify the 

accuracy of the website; 8 hours at 

$98.84/hr. for a computer programmer 

to make any needed updates to the 

website; 1 hour at $118.14/hr. for a 

general and operations manager to 

review and approve the website; and 1 

hour at $236.96/hr. for a chief executive 

to review and approve the website. In 

aggregate, we estimate an ongoing 

annual burden of 2,592 hours (12 hr. × 

54 States × 4 quarters) at a cost of 

$295,527(54 States × 4 quarters × [(2 hr. 

× $111.18) + (8 hr. × $98.84) + (1 hr. × 

$118.14) + (1 hr. × $236.96)]. Taking 

into account the Federal contribution to 

Medicaid administration, the estimated 

State share of this cost would be 

$147,763 ($295,527 × 0.50) per year. 

TABLE 13—SUMMARY OF THE ONGOING BURDEN FOR STATES FOR THE WEBSITE POSTING REQUIREMENTS AT § 442.43(f) 

Requirement Number 

respondents 

Total 

responses Frequency 

Time per 

response 

(hr.) 

Total time 

(hr.) 

Wage 

($/hr.) 

Total cost 

($) 

State 

share 

($) 

Provide updated data and information for posting and verify 

the accuracy of the website.

54 216 Quarterly 2 432 111.18 48,030 24,015 

Update website ........................................................................ 54 216 Quarterly 8 1,728 98.84 170,796 85,398 

Review and approve website at the management level ......... 54 216 Quarterly 1 216 118.14 25,518 12,759 

Review and approve website at the executive level ............... 54 216 Quarterly 1 216 236.96 51,183 25,592 

Total .................................................................................. 54 864 Quarterly Varies 2,592 Varies 295,527 147,763 

4. Burden Estimate Summary 

TABLE 14—SUMMARY OF ANNUAL BURDEN ESTIMATES

Regulation section(s)/ICR provision Number of 

respondents 

Number of 

responses 

Time per 

response 

(hrs) 

Total time 

(hr.) 

Hourly labor 

rate 

($/hr.) 

Total labor 

cost 

($) 

State 

share 

($) 

Total 

beneficiary 

cost 

($) 

§ 442.43(b) One-Time Burden to States (Table 8) 

(Payment Transparency Reporting).

Varies 402 Varies ...... 6,396 Varies 622,251 311,275 0 

§ 442.43(b) Ongoing Burden to States (Table 9) 

(Payment Transparency Reporting—Annual).

54 270 Varies ..... 1,026 Varies 97,470 48,735 0 

§ 442.43(b) One-Time Burden to Providers (Table 

10) (Payment Transparency Reporting).

19,907 59,721 Varies ..... 418,047 Varies 36,560,002 n/a 0 

§ 442.43(b) Ongoing Burden to Providers (Table 

11) (Payment Transparency Reporting—Annual).

19,907 59,721 Varies ..... 218,977 Varies 17,912,717 n/a 0 

§ 442.43(f) One-Time Burden to States (Table 12) 

(Website Posting).

54 216 Varies ..... 2,268 Varies 239,333 119,667 0 

§ 442.43(f) Ongoing Burden to States (Table 13) 

(Website Posting—Quarterly).

54 864 Varies ..... 2,592 Varies 295,527 147,763 0 

Total .................................................................. Varies 121,194 Varies ..... 649,306 Varies 55,727,300 627,440 0 

Comments must be received on/by 

October 31, 2023. 

V. Response to Comments 

Because of the large number of public 

comments we normally receive on 

Federal Register documents, we are not 

able to acknowledge or respond to them 

individually. We will consider all 

comments we receive by the date and 

time specified in the DATES section of 

this preamble, and, when we proceed 

with a subsequent document, we will 

respond to the comments in the 

preamble to that document. 

VI. Regulatory Impact Analysis 

A. Statement of Need 

1. Minimum Nurse Staffing 

With respect to the requirements for 

minimum nurse staffing in LTC 

facilities, sections 1819 and 1919 of the 

Act, authorize the Secretary to issue 

requirements for participation in 

Medicare and Medicaid, including such 

regulations as may be necessary to 

protect the health and safety of residents 

(sections 1819(d)(4)(B) and 

1919(d)(4)(B) of the Act). Such 

regulations are codified in the 

implementing regulations at 42 CFR part 

483, subpart B. 

Approximately 1.4 million Americans 

are residents in LTC facilities with 

Medicare and Medicaid serving as the 

payor for most residents.156 As we have 

discussed in detail in sections II. and III. 

of this proposed rule, a large body of 

quantitative and qualitative research 

suggests that adequate nurse staffing is 

vital for ensuring residents’ health and 

safety. More specifically, there is a 

positive association between the 

number of hours of care that a resident 

receives each day and resident health 

and safety.157 158 159 Research also 

suggests that there is a relationship 

between inadequate staffing and nursing 

staff burnout, which can lead to high 


lotter on DSK11XQN23PROD with PROPOSALS2
61398 Federal Register / Vol. 88, No. 171 / Wednesday, September 6, 2023 / Proposed Rules 

160 Kelly LA, Gee PM, Butler RJ. Impact of nurse 

burnout on organizational and position turnover. 

Nurs Outlook. 2021 Jan-Feb;69(1):96–102. doi: 

10.1016/j.outlook.2020.06.008. Epub 2020 Oct 4. 

PMID: 33023759; PMCID: PMC7532952. 

161Ochieng, N., Chidambaram, P., Musumeci, M. 

Nursing Facility Staffing Shortages During the 

COVID–19 Pandemic. Apr 04, 2022. Kaiser Family 

Foundation. Accessed at https://www.kff.org/ 

coronavirus-covid-19/issue-brief/nursing-facilitystaffing-shortages-during-the-covid-19-pandemic/. 

162Harrington, C., Carrillo, H., Garfield, R., 

Squires, E. Nursing Facilities, Staffing, Residents 

and Facility Deficiencies, 2009 Through 2016. Apr 

03, 2018. Kaiser Family Foundation. Accessed at 

https://www.kff.org/report-section/nursingfacilities-staffing-residents-and-facility-deficiencies2009-through-2016-staffing-levels/. 

163Min A, Hong HC. Effect of nurse staffing on 

rehospitalizations and emergency department visits 

among short-stay nursing home residents: A Crosssectional study using the US Nursing Home 

Compare database. Geriatr Nurs. 2019 MarApr;40(2):160–165. doi: 10.1016/ 

j.gerinurse.2018.09.010. Epub 2018 Oct 4. PMID: 

30292528. 

164 Kim, Min-Young, Edward Weizenegger, and 

Andrea Wysocki. Medicaid Beneficiaries Who Use 

Long-Term Services and Supports: 2019. Chicago, 

IL: Mathematica, July 22, 2022. Accessed at https:// 

www.medicaid.gov/medicaid/long-term-servicessupports/downloads/ltss-user-brief-2019.pdf. 

Disclaimer: This document contains links to nonUnited States Government websites. We are 

providing these links because they contain 

additional information relevant to the topic(s) 

discussed in this document or that otherwise may 

be useful to the reader. We cannot attest to the 

accuracy of information provided on the cited thirdparty websites or any other linked third-party site 

after the date when we accessed them. We are 

providing these links for reference only; linking to 

a non-United States Government website does not 

constitute an endorsement by CMS, HHS, or any of 

their employees of any products presented on the 

website. Also, please be aware that the privacy 

protections generally provided by United States 

Government websites do not apply to third-party 

sites. 

165Murray, Caitlin, Alena Tourtellotte, Debra 

Lipson, and Andrea Wysocki. Medicaid Long Term 

Services and Supports Annual Expenditures Report: 

Federal Fiscal Year 2019. Chicago, IL: Mathematica, 

December 9, 2021. Accessed at https://

www.medicaid.gov/medicaid/long-term-servicessupports/downloads/ltssexpenditures2019.pdf. 

166Campbell, S., A. Del Rio Drake, R. Espinoza, 

K. Scales. 2021. Caring for the future: The power 

and potential of America’s direct care workforce. 

Bronx, NY: PHI http://phinational.org/wp-content/ 

uploads/2021/01/Caring-for-the-Future-2021- 

PHI.pdf. 167Centers for Medicare & Medicaid Services. 

November 2020. Long-Term Services and Supports 

Rebalancing Toolkit. Accessed at https://

www.medicaid.gov/medicaid/long-term-servicessupports/downloads/ltss-rebalancing-toolkit.pdf. 

168Ochieng, N., Chidambaram, P., Musumeci, M. 

Nursing Facility Staffing Shortages During the 

COVID–19 Pandemic. Apr 04, 2022. Kaiser Family 

Foundation. Accessed at https://www.kff.org/ 

coronavirus-covid-19/issue-brief/nursing-facilitystaffing-shortages-during-the-covid-19-pandemic/. 

169Harrington, C., Carrillo, H., Garfield, R., 

Squires, E. Nursing Facilities, Staffing, Residents 

and Facility Deficiencies, 2009 Through 2016. Apr 

03, 2018. Kaiser Family Foundation. Accessed at 

https://www.kff.org/report-section/nursingfacilities-staffing-residents-and-facility-deficiencies2009-through-2016-staffing-levels/. 

170Min A, Hong HC. Effect of nurse staffing on 

rehospitalizations and emergency department visits 

among short-stay nursing home residents: A Crosssectional study using the US Nursing Home 

Compare database. Geriatr Nurs. 2019 MarApr;40(2):160–165. doi: 10.1016/ 

j.gerinurse.2018.09.010. Epub 2018 Oct 4. PMID: 

30292528. 

employee turnover.160 High employee 

turnover, in turn, can lead to lower 

continuity of resident care. 

During our regular interactions with 

State Medicaid agencies, provider 

groups, and beneficiary advocates, we 

have observed that all these interested 

parties routinely express the concern 

that chronic understaffing in LTC 

facilities is making it difficult for 

residents to receive high quality care. 

Low quality care also has a negative 

impact on Medicare and Medicaid 

leading to higher spending due to more 

hospitalizations and unplanned 

Emergency Department visits.161 162 163

As we have noted throughout this rule, 

the available evidence suggests that a 

wide range of requirements for LTC 

facility staff could increase the quality 

of care in LTC facilities. We also 

recognized, however, that staffing in the 

long-term care sector is still recovering 

from the COVID–19 pandemic that saw 

a large number of employees leave the 

sector, leading to concerns about 

resident access to care. In response to 

these concerns, and after evaluating a 

wide range of research and stakeholder 

feedback, we developed a proposed 24/ 

7 on-site RN requirement and minimum 

RN and NA HPRD requirements that 

aim to increase resident safety and 

quality of care while preserving resident 

access to care. 

Specifically, we are proposing that 

LTC facilities provide RN coverage 

onsite 24 hours per day, 7 days a week 

(24/7 RN). In addition, we are proposing 

that they provide a minimum of 0.55 RN 

and 2.45 NA hours of care per resident 

day (HPRD). We note that, as discussed 

in section II above, while the 0.55 and 

2.45 HPRD standards were developed 

using case-mix adjusted data sources, 

the standards themselves will be 

implemented and enforced independent 

of a facility’s case-mix. In other words, 

facilities must meet the 0.55 RN and 

2.45 NA HPRD standards, regardless of 

the individual facility’s patient casemix. Requiring 24/7 RN and a minimum 

number of hours of RN and NA hours 

of care for each resident will help 

protect resident health and safety by 

ensuring that all facilities provide a 

minimal level of staff care to address 

residents’ health and safety needs. 

These standards reflect only the 

minimum level of staffing required and 

all LTC facilities must provide adequate 

staffing to meet their specific 

population’s needs based on their 

facility assessments. 

2. Medicaid Institutional Payment 

Transparency Reporting 

Millions of Americans, including 

children and adults of all ages, receive 

Medicaid-covered long-term services 

and supports (LTSS) because of 

disabling conditions, chronic illness, 

and other factors. Medicaid is the largest 

payer nationally of LTSS. In 2019, 1.5 

million Medicaid beneficiaries received 

nursing facility or intermediate care 

facility for individuals with intellectual 

disability (ICF/IID) services,164 which 

accounted for over $61 billion in 

Medicaid expenditures, or 13 percent of 

the $478 billion in total Medicaid 

expenditures for that year.165

Through our regular interactions with 

State Medicaid agencies, provider 

groups, and beneficiary advocates, we 

have observed that all these interested 

parties routinely express the concern 

that understaffing in facilities and high 

rates of worker turnover of direct care 

workers make it difficult to have the 

sufficient workforce of well-trained and 

qualified staff needed to help ensure 

access to high-quality institutional 

services for people with disabilities and 

older adults. Further, demand for direct 

care workers is expected to continue 

rising due to the growing needs of the 

aging population.166 167

As discussed in sections II. and III. of 

this proposed rule, anecdotal, 

quantitative, and qualitative evidence 

indicates that consistent, adequate 

direct care nurse staffing is vital to 

residents’ health and safety. Worker 

turnover or understaffing also can 

reduce the efficiency of Medicaid 

payment for services, most clearly when 

the payment methodology is based on 

the actual cost of delivering services and 

such costs are increased due to reliance 

on overtime and temporary staff, which 

can have higher hourly costs than nonovertime wages paid to permanent staff. 

Further, understaffing can reduce 

quality of care, which can lead to poorer 

outcomes for people in institutional 

settings and result in costly emergency 

department visits and 

hospitalizations.168 169 170 Accordingly, 

understaffing can reduce the costeffectiveness of Medicaid institutional 

services. 

In response to these concerns about 

the institutional workforce, we are 

proposing new Federal reporting 

requirements that are intended to 

promote public transparency around 

States’ statutory obligation under 

section 1902(a)(30)(A) of the Act and 

around the quality requirements in 

section 1932(c) of the Act for services 

furnished through managed care 


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171Throughout this discussion, we use the term 

‘‘States’’ to include all States, Washington, DC, and 

any territories that include nursing facility services 

or ICF/IID services in their State plan. 

172Campbell, S., A. Del Rio Drake, R. Espinoza, 

K. Scales. 2021. Caring for the future: The power 

and potential of America’s direct care workforce. 

Bronx, NY: PHI http://phinational.org/wp-content/ 

uploads/2021/01/Caring-for-the-Future-2021- 

PHI.pdf. 

173Sharma, H. and Liu, X. Association between 

wages and nursing staff turnover in Iowa. Innov 

Aging. 2022; 6(4): igac004. Published online 2022 

Feb 5. doi: 10.1093/geroni/igac004. 

organizations (MCOs) (as well as for 

prepaid inpatient health plans (PIHPs). 

We do so under our authority at section 

1902(a)(4)), to make Medicaid payments 

that are sufficient to enlist enough 

providers so that high-quality LTSS are 

available to the beneficiaries who want 

and require such care. We are also 

relying on our authority under section 

1902(a)(6) of the Act, which requires 

State Medicaid agencies to make such 

reports, in such form and containing 

such information, as the Secretary may 

from time to time require, and to 

comply with such provisions as the 

Secretary may from time to time find 

necessary to assure the correctness and 

verification of such reports. 

Specifically, we are proposing to 

require that State Medicaid agencies 

report annually, at the facility level and 

by delivery system (if applicable), on 

the portion of payments to nursing 

facility and ICF/IID services that are 

spent on compensation for the direct 

care and support staff workforce.171 We 

are also proposing that States make this 

information available to the public by 

posting the information on a website. 

We are focusing on this compensation 

proposal because many direct care 

workers and support staff earn low 

wages and receive limited benefits.172

Evidence suggests that there is a 

connection between wages and high 

rates of turnover among some workers 

in the institutional workforce.173 In 

order to develop relevant policies to 

support high quality care for Medicaid 

beneficiaries, we first need clear, 

consistent data from States and facilities 

about the current percent of Medicaid 

payments going to the compensation of 

direct care workers and support staff. 

Data regarding the percent of Medicaid 

payments going to compensation of 

direct care workers and support staff is 

not currently being reported to CMS. 

B. Overall Impacts 

We have examined the impacts of this 

proposed rule as required by Executive 

Order 12866 on Regulatory Planning 

and Review (September 30, 1993), 

Executive Order 13563 on Improving 

Regulation and Regulatory Review 

(January 18, 2011), the Regulatory 

Flexibility Act (RFA, September 19, 

1980, Pub. L. 96–354), section 1102(b) of 

the Act, section 202 of the Unfunded 

Mandates Reform Act of 1995 (UMRA, 

March 22, 1995; Pub. L. 104–4), and 

Executive Order 13132 on Federalism 

(August 4, 1999). 

Executive Orders 12866 and 13563 

direct agencies to assess all costs and 

benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, distributive impacts, and 

equity). Executive Order 14094 entitled 

‘‘Modernizing Regulatory Review’’ 

(hereinafter, the Modernizing E.O.) 

amends section 3(f)(1) of Executive 

Order 12866 (Regulatory Planning and 

Review). The amended section 3(f) of 

Executive Order 12866 defines a 

‘‘significant regulatory action’’ as an 

action that is likely to result in a rule: 

(1) having an annual effect on the 

economy of $200 million or more in any 

1 year (adjusted every 3 years by the 

Administrator of OIRA for changes in 

gross domestic product), or adversely 

affect in a material way the economy, a 

sector of the economy, productivity, 

competition, jobs, the environment, 

public health or safety, or State, local, 

territorial, or tribal governments or 

communities; (2) creating a serious 

inconsistency or otherwise interfering 

with an action taken or planned by 

another agency; (3) materially altering 

the budgetary impacts of entitlement 

grants, user fees, or loan programs or the 

rights and obligations of recipients 

thereof; or (4) raising legal or policy 

issues for which centralized review 

would meaningfully further the 

President’s priorities or the principles 

set forth in this Executive order, as 

specifically authorized in a timely 

manner by the Administrator of OIRA in 

each case. 

A regulatory impact analysis (RIA) 

must be prepared for regulatory actions 

with significant effects as per section 

3(f)(1) ($200 million or more in any 1 

year). Accordingly, we have prepared a 

Regulatory Impact Analysis that to the 

best of our ability presents the costs and 

benefits of the rulemaking. 

For this proposed rule, we have 

calculated the annual cost of the 

proposed minimum staffing 

requirements in Table 20 hours based 

on hours per resident day in CY 2021 

dollars, assuming the implementation 

and enforcement of these requirements 

as being applied independent of a 

facility’s case-mix. We estimate that the 

aggregate impact of the staffing-related 

provisions proposed in this rule, which 

includes a phased-in implementation of 

a requirement for 24 hours per day, 7 

days per week RN onsite coverage, as 

well as the 0.55 RN and 2.45 NA 

minimum HPRD requirements, will 

result in an estimated cost of 

approximately $32 million in year 1, 

$246 million in year 2, $4.06 billion in 

year 3, with costs increasing to $5.7 

billion by year 10. We estimate the total 

cost over 10 years will be $40.6 billion 

with an average annual cost of $4.06 

billion. 

Additionally, we have estimated in 

Table 30 the economic impact of the 

proposed requirement that States report, 

by facility and by delivery system (if 

applicable), on the percentage of 

Medicaid payments being spent on 

compensation for direct care workers 

and support staff delivering Medicaidcovered nursing facility and ICF/IID 

services. We are proposing that these 

requirements would become effective 4 

years after finalization. We estimate an 

initial implementation cost of 

$9,355,472 for years 1 to 4 (resulting in 

total initial implementation costs of 

$37,421,886) and ongoing annual costs 

of $18,305,713 per year starting in year 

5. 

C. Detailed Economic Analysis 

1. Impacts for LTC Minimum Staff 

Requirement 

a. Nursing Services (§ 483.35) 

We are proposing to make two 

changes to the existing requirements for 

Nursing Services for LTC facilities at 

§ 483.35. We are proposing to require 

facilities to provide RN coverage onsite 

24 hours per day, 7 days a week and to 

meet a minimum staffing standard of 

0.55 RN and 2.45 NA HPRD. We note 

that these estimates do not include the 

exemption criteria, which could reduce 

the rule’s cost (including cost associated 

with potential LTC facility closure or 

reduction in patient load capacity per 

facility) and benefits, based on the use 

of exemptions. 

(1) RN On Site 24 Hours a Day, 7 Days 

a Week (24/7 RN) 

To estimate the cost to the industry 

for the RN on site 24 hours a day, 7 days 

a week (24/7 RN) requirement we first 

summed the current annual RN salary 

cost for each facility. We then 

subtracted this amount from the 

estimated annual RN salary cost that the 

facility will incur to meet the new 

requirement. 

To measure the current RN staff cost 

to the industry, we estimated the total 

number of RNs currently employed in 

LTC facilities and their loaded 


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61400 Federal Register / Vol. 88, No. 171 / Wednesday, September 6, 2023 / Proposed Rules 

174Mark B, Harless DW, and Spetz J. Spetz. 

California’s Minimum-Nurse Staffing Legislation 

and Nurses’ Wages Health Affairs. 2009;28 

Supplement 1, w326–w334. doi: 10.1377/ 

hlthaff.28.2.w326. 

175Barry J. Real wage growth in the U.S. health 

workforce and the narrowing of the gender pay gap. 

Human Resources for Health. 2021;19: 105. doi: 

10.1186/s12960–021–00647–3. 

respective labor wages using data from 

the 2022 Nursing Home Staffing Study, 

which has information on 14,688 LTC 

facilities. This study uses the 2021 

SNF—Medicare Cost Report data set to 

find the total facilities, the total number 

of reported LTC specific RNs and their 

loaded annual salaries, defined as salary 

and fringe benefits. Using this dataset, 

we were able to estimate the aggregate 

RN loaded salary costs and the cost per 

facility. 

To estimate the RN cost per resident 

census, we used the October 2021 Care 

Compare data set that calculates average 

hours per resident day (HPRD) for RNs 

using the PBJ System data from 2021 

Q2. Hours per resident day is defined as 

the average hours of RN care that each 

resident in the facility receives per day. 

For example, a facility that has an 

average HPRD of 0.5 for RNs would 

provide, on average, 0.5 hours (30 

minutes) of RN care for each resident. 

We linked this dataset using the facility 

unique ID variable with the 2021 SNF— 

Medicare Cost Report data set to create 

a complete dataset. Using this combined 

dataset, we were also able to view the 

impact by resident census as well as the 

impact by LTC facility characteristics 

such as facility ownership, bed size, 

Five-Star Quality Rating System staffing 

ratings, payer mix, and location. This 

complete dataset helped provide an 

understanding of which types of LTC 

facilities would bear the largest cost 

burden of a new Federal 24/7 RN 

requirement. 

For each facility, we first calculated 

the total number of hours each day that 

an RN is on site by multiplying the 

average RN hours per resident day by 

the average number of residents in the 

facility (daily hours of RN care = RN 

HPRD × Residents in Facility). We then 

estimated the number of additional 

hours of RN care that facility would 

need to meet the 24/7 RN requirement 

by subtracting the current daily hours of 

RN care from 24 hours (additional daily 

RN hours needed = 24 ¥ current daily 

hours of RN care). We then calculated 

the total number of additional RN hours 

needed per year by multiplying this 

amount by 365 (additional yearly RN 

hours needed = additional daily RN 

hours needed × 365). Finally, we 

estimated each facility’s yearly cost for 

meeting the requirement by multiplying 

the total number of the yearly hours 

needed by the loaded hourly wage 

(yearly 24/7 RN cost = additional yearly 

RN hours needed × facility RN wage 

rate). 

For example, if a facility had an 

average of 0.4 RN HPRD and had 50 

residents it would provide 20 hours of 

total RN hours per day (0.4 HPRD × 50 

residents = 20 total RN hours per day). 

To meet the 24/7 RN requirement, this 

facility would have to increase its total 

RN hours per day by 4 hours (24 hours 

needed ¥ 20 hours current RN care = 

4 hours needed) and 1,460 hours (4 

hours per day × 365 days/year) 

annually. Using the loaded hourly wage 

cost of $44 per hour, this facility would 

spend $64,240 per year ($44 × 4 RN 

hours per day × 365 day per year = 

$64,240) to be in compliance with the 

24/7 RN requirement. 

After estimating each facility’s cost for 

meeting the 24/7 RN requirement, the 

next step was to sum the additional cost 

for all LTC facilities to meet the 24/7 RN 

requirement for an aggregate cost to the 

industry of $349 million per year. We 

also found approximately 78 percent of 

LTC facilities had 24/7 RN coverage 

within a 90-day window based on PBJ 

System data from 2021 Q2 showing that 

they provided at least 24 hours of RN 

care per day. We assumed this estimate 

for all quarters, for an annual estimate 

of approximately 22 percent (100 

percent ¥ 78 percent = 22 percent) or 

3,261 LTC facilities (0.222 × 14,688 LTC 

facilities = 3,261 LTC facilities) that 

would need to increase their RN staffing 

to comply with the 24/7 RN 

requirement. Among this 22 percent of 

facilities needing to increase RN 

staffing, there was an average of 0.43 

hours of RN care per resident day. 

Table 15 summarizes the average 

annual cost for LTC facilities to meet the 

24/7 RN Staffing Requirement over a 10- 

year period, which includes any 

associated collection of information 

costs as described in section IV. In 

estimating the cost, we take into account 

expected growth in wages that will 

result from greater demand for RNs in 

LTC facilities to meet this proposed 24/ 

7 RN requirement, as well as the 0.55 

RN hours per resident day requirement 

that we discuss in more detail later in 

the analysis. All costs are reflected in 

2021 US dollars. 

There is uncertainty about how much 

RN wages will change over the next 10 

years due to changes in demand for RNs 

emerging due to both this proposed rule, 

as well as broader patterns of healthcare 

use in the United States. A 2009 

study 174 examined minimum licensed 

nurse (RN/LPN) staffing standards in 

California for acute care hospitals that 

went into effect in March 2004. The 

authors found that compared to 

metropolitan areas outside of California 

that did not have the regulation, RN 

wage growth in California increased 

12.8 percent more between 2000 and 

2006. A more recent study 175 found that 

real nurse wage rates increased by 

nearly 10 percent between 2001 and 

2017, with changes in rates varying 

during years of U.S. economic growth 

and recession. During its strongest 

growth between 2001 and 2004, real 

wages increased at an average rate of 

2.41 percent annually. Given the 

uncertainty in growth and increased 

demands for RNs, we assumed that real 

wages each year would increase at 2.31 

percent. 

We provide separate cost estimates for 

facilities in rural and urban areas since 

facilities in rural areas would have to 

meet the requirement 3 years after the 

final rule publication. Facilities in 

urban areas, in contrast, would need to 

meet the requirement 2 years after the 

final rule publication. This resulted in 

an average annual cost of approximately 

$347 million in 2021 US dollars without 

considering exemptions. 

TABLE 15—ANNUAL COST FOR 24/7 RN REQUIREMENT

Year 

Collection of 

information costs 

for 24/7 RN 

(§ 483.35 nursing 

services) 

24/7 RN 

requirement 

(urban facilities) 

24/7 RN 

requirement 

(rural facilities) 

Total cost 

1 ......................................................................................... $7,461,504.00 $0.00 $0.00 $7,461,504.00 

2 ......................................................................................... 7,633,864.74 213,764,107.41 0.00 221,397,972.15 

3 ......................................................................................... 7,810,207.02 218,702,058.29 146,603,030.04 373,115,295.34 


lotter on DSK11XQN23PROD with PROPOSALS2
Federal Register / Vol. 88, No. 171 / Wednesday, September 6, 2023 / Proposed Rules 61401 

TABLE 15—ANNUAL COST FOR 24/7 RN REQUIREMENT—Continued 

Year 

Collection of 

information costs 

for 24/7 RN 

(§ 483.35 nursing 

services) 

24/7 RN 

requirement 

(urban facilities) 

24/7 RN 

requirement 

(rural facilities) 

Total cost 

4 ......................................................................................... 7,990,622.80 223,754,075.83 149,989,560.03 381,734,258.67 

5 ......................................................................................... 8,175,206.19 228,922,794.98 153,454,318.87 390,552,320.04 

6 ......................................................................................... 8,364,053.45 234,210,911.55 156,999,113.64 399,574,078.64 

7 ......................................................................................... 8,557,263.08 239,621,183.61 160,625,793.16 408,804,239.85 

8 ......................................................................................... 8,754,935.86 245,156,432.95 164,336,248.98 418,247,617.79 

9 ......................................................................................... 8,957,174.88 250,819,546.55 168,132,416.34 427,909,137.76 

10 ....................................................................................... 9,164,085.62 256,613,478.07 172,016,275.15 437,793,838.85 

10 Year Total Cost ..................................................... 82,868,918 2,111,564,589 1,272,156,756 3,466,590,263.09 

We are soliciting comments on our 

assumptions, particularly our 

assumption that real wage rates for RNs 

will increase at annual rate of 2.31 

percent, and burden estimates. We are 

also soliciting comments on how the 

available supply of RNs and potential 

changes in this supply and demand 

across different geographical areas over 

the next 10 years may influence the 

rule’s cost for LTC facilities and other 

health care providers competing for the 

same supply of RNs. 

(2) RN On Site 24 Hours a Day, 7 Days 

a Week (24/7 RN)—State Level Analysis 

To provide a more in-depth 

understanding of the financial and 

staffing effects of the 24/7 RN proposed 

requirement, we examined its impact for 

different groups of LTC facilities in each 

State, as well as Washington DC and 

Puerto Rico. We first assessed how 

many full-time RNs LTC facilities would 

need to hire to meet the proposed 

requirement. In this analysis, we 

defined a full-time employee as an 

employee who worked 1,950 hours per 

year. This definition was based on a 

full-time employee working 5 days per 

week, 8 hours per day, with a 30-minute 

break (37.5 hours/week × 52 weeks/ 

year). To meet the 24/7 RN requirement, 

each facility would need to provide a 

minimum of 8,760 hours (24 hours/day 

× 365 days) of RN care annually since 

we did not include any facility 

exemptions in these calculations. All 

calculations used the October 2021 Care 

Compare data set that provides each 

LTC facility’s average daily resident 

census and HPRD for RNs using the PBJ 

System data from 2021 Q2. 

For each facility, we first calculated 

the total number of full-time RNs in the 

facility using the following formula: 

(facility specific RN HPRD × average 

daily resident census × 365)/1,950. For 

example, if a facility had 100 residents 

and provided an average of 0.2 RN 

HPRD, then during the year, it will 

provide a total of 7,300 hours of RN care 

(0.2 RN HPRD × 100 residents × 365 

days = 7,300 hours) yearly and have 

3.74 full-time RNs. We then calculated 

the number of additional full-time RNs 

needed by subtracting the total hours of 

RN care that the facility currently 

provides yearly from the 8,760 hours 

needed to ensure 24/7 RN coverage and 

dividing by 1,950, which is the number 

of hours of yearly care provided by a 

full-time RN. Continuing with our 

example in this section, the LTC facility 

would need to provide 1,460 additional 

RN hours per year (8,760 hours¥7,300 

hours = 1,460 hours) and hire 0.75 

additional full-time RNs. 

Table 16 shows the total number of 

RNs currently employed by LTC 

facilities in each State’s urban and rural 

areas, the number of full-time RNs and 

NAs that LTC facilities would need to 

hire, and the percent increase in RNs 

that LTC facilities in each State would 

need to meet the proposed minimum 

staffing standard barring any 

exemptions. Oklahoma would need the 

largest increase in RNs in percentage 

terms for rural facilities, needing to 

increase the size of its RN workforce by 

27 percent. Meanwhile, for urban 

facilities, the largest percentage increase 

in RNs would be in Louisiana at 17.6 

percent. Facilities in Texas would need 

to hire the most overall RNs with the 

State needing 653 additional full-time 

RNs. Across the United States, however, 

the number of RNs that facilities would 

need to meet the requirement varies 

widely with several States, including 

Florida and Illinois, needing to increase 

the size of their LTC facilities’ RN labor 

force by less than 1 percent. 

TABLE 16—CURRENT AND ADDITIONAL FULL-TIME RNS NEEDED PER STATE TO MEET THE 24/7 RN REQUIREMENT

[Absent an exemption] 

State 

Existing fulltime RNs in 

rural areas 

Additional RNs 

needed in 

rural areas 

Percent 

increase in 

RNs needed in 

rural areas 

Existing fulltime RNs in 

urban areas 

Additional RNs 

needed in 

urban areas 

Percent 

increase in 

RNs needed in 

urban areas 

Alabama .................................................................................... 721 6 0.8 1,416 12 0.8 

Alaska ........................................................................................ 108 2 1.9 108 0 0.0 

Arizona ...................................................................................... 60 1 1.7 1,247 12 1.0 

Arkansas ................................................................................... 487 50 10.3 559 64 11.5 

California ................................................................................... 150 20 13.3 9,461 280 3.0 

Colorado .................................................................................... 374 17 4.5 2,026 0 0.0 

Connecticut ............................................................................... 118 1 0.8 2,145 2 0.1 

Delaware ................................................................................... 0 0 ........................ 648 1 0.2 

District of Columbia ................................................................... 0 0 ........................ 468 0 0.0 

Florida ....................................................................................... 286 8 2.8 8,208 21 0.3 

Georgia ...................................................................................... 732 66 9.0 1,469 58 3.9 

Hawaii ........................................................................................ 177 1 0.6 743 0 0.0 

Idaho ......................................................................................... 163 8 4.9 437 5 1.1 

Illinois ........................................................................................ 1,049 68 6.5 5,965 55 0.9 

Indiana ....................................................................................... 1,147 46 4.0 2,611 74 2.8 


lotter on DSK11XQN23PROD with PROPOSALS2
61402 Federal Register / Vol. 88, No. 171 / Wednesday, September 6, 2023 / Proposed Rules 

TABLE 16—CURRENT AND ADDITIONAL FULL-TIME RNS NEEDED PER STATE TO MEET THE 24/7 RN REQUIREMENT— 

Continued 

[Absent an exemption] 

State 

Existing fulltime RNs in 

rural areas 

Additional RNs 

needed in 

rural areas 

Percent 

increase in 

RNs needed in 

rural areas 

Existing fulltime RNs in 

urban areas 

Additional RNs 

needed in 

urban areas 

Percent 

increase in 

RNs needed in 

urban areas 

Iowa ........................................................................................... 1,458 99 6.8 1,254 37 3.0 

Kansas ...................................................................................... 862 71 8.2 1,054 38 3.6 

Kentucky .................................................................................... 1,212 8 0.7 1,249 9 0.7 

Louisiana ................................................................................... 262 49 18.7 762 134 17.6 

Maine ......................................................................................... 403 8 2.0 576 4 0.7 

Maryland .................................................................................... 125 0 0.0 2,939 9 0.3 

Massachusetts .......................................................................... 12 0 0.0 3,973 29 0.7 

Michigan .................................................................................... 1,299 12 0.9 3,050 32 1.0 

Minnesota .................................................................................. 1,218 19 1.6 2,968 14 0.5 

Mississippi ................................................................................. 982 21 2.1 509 16 3.1 

Missouri ..................................................................................... 823 114 13.9 1,707 114 6.7 

Montana .................................................................................... 356 15 4.2 163 6 3.7 

Nebraska ................................................................................... 630 58 9.2 743 4 0.5 

Nevada ...................................................................................... 61 4 6.6 667 0 0.0 

New Hampshire ......................................................................... 349 1 0.3 388 7 1.8 

New Jersey ............................................................................... 0 0 ........................ 4,756 22 0.5 

New Mexico ............................................................................... 256 8 3.1 324 4 1.2 

New York ................................................................................... 827 5 0.6 10,277 21 0.2 

North Carolina ........................................................................... 800 19 2.4 2,381 46 1.9 

North Dakota ............................................................................. 386 9 2.3 313 0 0.0 

Ohio ........................................................................................... 1,681 74 4.4 5,169 142 2.7 

Oklahoma .................................................................................. 437 118 27.0 568 83 14.6 

Oregon ...................................................................................... 158 5 3.2 762 29 3.8 

Pennsylvania ............................................................................. 1,026 1 0.1 7,575 9 0.1 

Puerto Rico ............................................................................... 0 0 ........................ 29 0 0.0 

Rhode Island ............................................................................. 0 0 ........................ 947 0 0.0 

South Carolina .......................................................................... 279 8 2.9 1,325 26 2.0 

South Dakota ............................................................................ 488 19 3.9 240 4 1.7 

Tennessee ................................................................................. 683 28 4.1 1,693 25 1.5 

Texas ......................................................................................... 1,138 250 22.0 4,451 403 9.1 

Utah ........................................................................................... 122 2 1.6 926 8 0.9 

Vermont ..................................................................................... 250 4 1.6 72 1 1.4 

Virginia ...................................................................................... 574 6 1.0 1,951 22 1.1 

Washington ............................................................................... 193 3 1.6 1,967 5 0.3 

West Virginia ............................................................................. 399 10 2.5 682 2 0.3 

Wisconsin .................................................................................. 1,142 11 1.0 2,214 20 0.9 

Wyoming ................................................................................... 245 5 2.0 85 0 0.0 

United States ..................................................................... 26,708 1,358 5.1 108,220 1,909 1.8 

We then assessed the financial cost 

for facilities to implement the proposed 

24/7 RN requirement. To estimate the 

yearly cost per State, we used the 

formulas described in section 

VI.C.1.a.(1) of this proposed rule to first 

estimate each facility’s yearly cost to 

meet the requirement. We also assumed 

that LTC facilities exceeding the 

minimum requirements for RNs would 

not reduce RNs to the minimum 

required level or lay off other staff to 

reduce costs. We then calculated the 

average cost per resident day by 

summing the total cost of meeting the 

requirement for all facilities in the State 

and dividing it by the total number of 

resident days for all facilities needing 

additional RNs. We estimated the 

average cost per resident day only for 

facilities needing staff to provide a more 

complete picture of the burden that the 

rule would impose on these facilities. 

Table 17 provides the yearly 

Statewide cost to implement the 

requirement, as well as the average cost 

per resident day for facilities in rural 

and urban areas that would need to hire 

additional RN to meet the requirement. 

Delaware would have the highest cost 

per resident day with a single facility 

that is not meeting the 24/7 RN 

requirement and would need to spend 

$87.45 per resident day. The highest 

overall cost occurs in Texas where 

facilities would need to collectively 

spend more than $84 million to meet 

the minimum staffing requirement. The 

cost also varied across urban and rural 

areas. In New Hampshire, LTC facilities 

in urban areas that need staff would 

need to spend an average of $8.95 per 

resident day to meet the requirement, 

while in Hawaii, Puerto Rico, and 

Wyoming these facilities would incur 

no cost. Nevada would have the highest 

average cost for rural LTC facilities at 

$21.81 per resident day. 

TABLE 17—LTC FACILITIES IN EACH STATE NEEDING RNS AND THE AVERAGE COST PER RESIDENT DAY BY RURAL AND

URBAN LOCATION TO SATISFY 24/7 RN REQUIREMENT

[Absent an exemption] 

State 

Yearly statewide cost 

($ million) 

Average cost 

per resident 

day 

(statewide) 

Urban LTC 

facilities 

needing RNs 

Average cost 

per resident 

day 

(urban areas) 

Rural LTC 

facilities 

needing RNs 

Average cost 

per resident 

day 

(rural areas) 

Alabama .................................................................................... 1.1 $3.25 12 $3.86 6 $2.14 

Alaska ........................................................................................ 0.2 20.75 0 0.00 2 20.75 

Arizona ...................................................................................... 1.1 5.09 12 5.80 1 0.28 


lotter on DSK11XQN23PROD with PROPOSALS2
Federal Register / Vol. 88, No. 171 / Wednesday, September 6, 2023 / Proposed Rules 61403 

TABLE 17—LTC FACILITIES IN EACH STATE NEEDING RNS AND THE AVERAGE COST PER RESIDENT DAY BY RURAL AND

URBAN LOCATION TO SATISFY 24/7 RN REQUIREMENT—Continued 

[Absent an exemption] 

State 

Yearly statewide cost 

($ million) 

Average cost 

per resident 

day 

(statewide) 

Urban LTC 

facilities 

needing RNs 

Average cost 

per resident 

day 

(urban areas) 

Rural LTC 

facilities 

needing RNs 

Average cost 

per resident 

day 

(rural areas) 

Arkansas ................................................................................... 8.8 3.62 64 3.00 50 4.59 

California ................................................................................... 44.5 7.96 280 7.81 20 10.42 

Colorado .................................................................................... 1.8 9.13 0 0.00 17 9.13 

Connecticut ............................................................................... 0.2 6.24 2 1.22 1 19.09 

Delaware ................................................................................... 0.3 87.45 1 87.45 0 0.00 

District of Columbia ................................................................... 0.0 0.00 0 0.00 

Florida ....................................................................................... 2.4 5.04 21 4.92 8 5.31 

Georgia ...................................................................................... 13.0 4.91 58 4.54 66 5.27 

Hawaii ........................................................................................ 0.1 10.08 0 0.00 1 10.08 

Idaho ......................................................................................... 0.9 6.34 5 8.38 8 5.04 

Illinois ........................................................................................ 14.4 6.95 55 6.15 68 7.86 

Indiana ....................................................................................... 10.9 5.87 74 5.16 46 7.48 

Iowa ........................................................................................... 10.0 6.18 37 5.37 99 6.51 

Kansas ...................................................................................... 9.0 7.14 38 6.72 71 7.41 

Kentucky .................................................................................... 1.2 4.63 9 3.01 8 7.12 

Louisiana ................................................................................... 23.1 4.43 134 4.16 49 5.34 

Maine ......................................................................................... 0.8 6.55 4 5.55 8 7.19 

Maryland .................................................................................... 0.6 6.20 9 6.20 0 0.00 

Massachusetts .......................................................................... 3.1 7.23 29 7.23 0 0.00 

Michigan .................................................................................... 4.2 5.38 32 5.89 12 3.69 

Minnesota .................................................................................. 1.6 5.05 14 5.91 19 4.39 

Mississippi ................................................................................. 2.3 3.68 16 3.81 21 3.57 

Missouri ..................................................................................... 23.5 5.83 114 5.29 114 6.46 

Montana .................................................................................... 1.7 6.16 6 4.62 15 6.96 

Nebraska ................................................................................... 5.6 8.28 4 5.50 58 8.47 

Nevada ...................................................................................... 0.7 21.81 0 0.00 4 21.81 

New Hampshire ......................................................................... 0.8 8.54 7 8.95 1 6.61 

New Jersey ............................................................................... 1.7 4.41 22 4.41 0 0.00 

New Mexico ............................................................................... 0.8 5.00 4 4.57 8 5.34 

New York ................................................................................... 2.7 5.57 21 5.35 5 6.75 

North Carolina ........................................................................... 5.6 4.63 46 5.15 19 3.51 

North Dakota ............................................................................. 0.7 6.94 0 0.00 9 6.94 

Ohio ........................................................................................... 17.9 4.94 142 4.83 74 5.23 

Oklahoma .................................................................................. 26.2 7.77 83 6.85 118 8.54 

Oregon ...................................................................................... 3.7 8.78 29 8.43 5 11.97 

Pennsylvania ............................................................................. 0.7 5.75 9 7.44 1 1.65 

Puerto Rico ............................................................................... 0.0 0.00 0 0.00 0 0.00 

South Carolina .......................................................................... 2.8 4.77 26 4.73 8 4.93 

South Dakota ............................................................................ 1.6 5.62 4 7.36 19 5.23 

Tennessee ................................................................................. 4.2 4.13 25 4.32 28 3.94 

Texas ......................................................................................... 84.6 6.28 403 5.48 250 7.95 

Utah ........................................................................................... 0.7 4.98 8 5.79 2 1.83 

Vermont ..................................................................................... 0.3 5.42 1 0.65 4 5.97 

Virginia ...................................................................................... 2.1 3.92 22 3.87 6 4.12 

Washington ............................................................................... 0.8 6.76 5 7.00 3 6.41 

West Virginia ............................................................................. 1.1 6.52 2 5.81 10 6.62 

Wisconsin .................................................................................. 2.6 7.30 20 7.42 11 7.10 

Wyoming ................................................................................... 0.4 8.60 0 0.00 5 8.60 

United States ..................................................................... 349.0 5.97 1,909 5.55 1,358 6.71 

Table 18 shows the average cost per 

resident day to implement the 

requirement for facilities in each State 

that would need additional RNs, 

dividing facilities based on their size 

into three groups: less than 50 beds, 50 

to 100 beds, and more than 100 beds. 

Within each group of LTC facilities, the 

cost varied widely by number of beds 

and State. In West Virginia, the average 

cost per resident day for facilities that 

have more than 100 beds and need 

additional RNs would be $0.72, while in 

North Carolina, the average cost per 

resident day for facilities with fewer 

than 50 beds would be $29.19. 

TABLE 18—NUMBER OF LTC FACILITIES IN EACH STATE NEEDING TO HIRE RNS AND AVERAGE COST PER RESIDENT

DAY BY FACILITY SIZE TO SATISFY 24/7 RN REQUIREMENT

[Absent an exemption] 

State LTC facilities 

needing RNs 

Yearly 

statewide cost 

($ million) 

Average cost 

per resident 

day 

(statewide) 

Cost¥<50 

beds 

Cost¥50 to 

100 beds 

Cost >100 

beds 

Alabama .................................................................................... 18 $1.10 $3.25 $0.94 $3.59 $2.09 

Alaska ........................................................................................ 2 0.20 20.75 20.75 0.00 0.00 

Arizona ...................................................................................... 13 1.10 5.09 11.17 5.02 4.23 

Arkansas ................................................................................... 114 8.80 3.62 0.00 4.63 2.75 

California ................................................................................... 300 44.50 7.96 17.35 6.39 3.33 


lotter on DSK11XQN23PROD with PROPOSALS2
61404 Federal Register / Vol. 88, No. 171 / Wednesday, September 6, 2023 / Proposed Rules 

TABLE 18—NUMBER OF LTC FACILITIES IN EACH STATE NEEDING TO HIRE RNS AND AVERAGE COST PER RESIDENT

DAY BY FACILITY SIZE TO SATISFY 24/7 RN REQUIREMENT—Continued 

[Absent an exemption] 

State LTC facilities 

needing RNs 

Yearly 

statewide cost 

($ million) 

Average cost 

per resident 

day 

(statewide) 

Cost¥<50 

beds 

Cost¥50 to 

100 beds 

Cost >100 

beds 

Colorado .................................................................................... 17 1.80 9.13 15.46 5.82 5.67 

Connecticut ............................................................................... 3 0.20 6.24 14.21 0.00 0.52 

District of Columbia ................................................................... 0 0.00 0.00 0.00 0.00 0.00 

Delaware ................................................................................... 1 0.30 87.45 0.00 87.45 0.00 

Florida ....................................................................................... 29 2.40 5.04 11.73 4.14 2.25 

Georgia ...................................................................................... 124 13.00 4.91 13.29 5.37 3.42 

Hawaii ........................................................................................ 1 0.10 10.08 10.08 0.00 0.00 

Idaho ......................................................................................... 13 0.90 6.34 7.54 4.57 6.57 

Illinois ........................................................................................ 123 14.40 6.95 13.93 8.19 4.02 

Indiana ....................................................................................... 120 10.90 5.87 12.74 5.69 2.33 

Iowa ........................................................................................... 136 10.00 6.18 7.92 4.85 2.24 

Kansas ...................................................................................... 109 9.00 7.14 8.26 5.75 2.62 

Kentucky .................................................................................... 17 1.20 4.63 3.37 5.41 0.16 

Louisiana ................................................................................... 183 23.10 4.43 10.25 7.00 3.85 

Maine ......................................................................................... 12 0.80 6.55 6.55 6.56 0.00 

Maryland .................................................................................... 9 0.60 6.20 6.96 2.13 0.00 

Massachusetts .......................................................................... 29 3.10 7.23 12.58 7.42 2.06 

Michigan .................................................................................... 44 4.20 5.38 11.66 4.50 2.81 

Minnesota .................................................................................. 33 1.60 5.05 5.61 3.97 0.00 

Mississippi ................................................................................. 37 2.30 3.68 9.72 3.25 1.50 

Missouri ..................................................................................... 228 23.50 5.83 11.26 7.32 3.61 

Montana .................................................................................... 21 1.70 6.16 12.26 3.78 8.19 

Nebraska ................................................................................... 62 5.60 8.28 10.60 6.54 4.94 

Nevada ...................................................................................... 4 0.70 21.81 24.40 17.35 0.00 

New Hampshire ......................................................................... 8 0.80 8.54 12.34 6.50 4.07 

New Jersey ............................................................................... 22 1.70 4.41 16.27 2.60 2.06 

New Mexico ............................................................................... 12 0.80 5.00 7.70 4.13 5.28 

New York ................................................................................... 26 2.70 5.57 6.83 7.70 1.77 

North Carolina ........................................................................... 65 5.60 4.63 29.19 3.66 1.52 

North Dakota ............................................................................. 9 0.70 6.94 6.42 11.09 0.00 

Ohio ........................................................................................... 216 17.90 4.94 9.75 4.33 3.71 

Oklahoma .................................................................................. 201 26.20 7.77 18.00 9.45 5.09 

Oregon ...................................................................................... 34 3.70 8.78 12.43 7.35 9.33 

Pennsylvania ............................................................................. 10 0.70 5.75 9.19 3.19 1.65 

Puerto Rico ............................................................................... 0 0.00 0.00 0.00 0.00 0.00 

South Carolina .......................................................................... 34 2.80 4.77 10.48 4.78 1.76 

South Dakota ............................................................................ 23 1.60 5.62 7.27 2.54 0.00 

Tennessee ................................................................................. 53 4.20 4.13 12.27 4.54 2.01 

Texas ......................................................................................... 653 84.60 6.28 10.93 8.11 5.01 

Utah ........................................................................................... 10 0.70 4.98 3.58 6.01 0.00 

Vermont ..................................................................................... 5 0.30 5.42 9.82 2.01 0.00 

Virginia ...................................................................................... 28 2.10 3.92 12.31 3.44 0.73 

Washington ............................................................................... 8 0.80 6.76 14.04 6.41 1.42 

West Virginia ............................................................................. 12 1.10 6.52 13.74 3.98 0.72 

Wisconsin .................................................................................. 31 2.60 7.30 13.32 5.52 9.19 

Wyoming ................................................................................... 5 0.40 8.60 17.49 2.22 0.00 

United States ..................................................................... 1,850 349.0 5.97 11.17 6.25 4.07 

In Table 19, we calculated the average 

cost by State for facilities needing staff 

to meet the minimum staffing 

requirement based on whether the 

facility accepted patients with 

Medicare, Medicaid, or both Medicare 

and Medicaid. The highest per resident 

day cost would be for 14 Medicaid-only 

facilities in Illinois that would need to 

spend an average of $29 per resident 

day to meet the staffing requirement. 

The lowest per resident day cost for 

facilities needing staff would be for a 

single Medicaid-only facility in South 

Dakota that would need to spend $0.33 

per resident day to meet the 

requirement. 

TABLE 19—NUMBER OF LTC FACILITIES IN STATE NEEDING TO HIRE STAFF AND AVERAGE COST PER RESIDENT DAY BY

MEDICARE, MEDICAID, AND DUAL ACCEPTANCE STATUS TO SATISFY 24/7 RN REQUIREMENT

[Absent exemption] 

State 

Medicaid only 

facilities 

needing RNs 

Medicaid only 

facilities cost 

per resident 

day 

Medicare only 

facilities 

needing RNs 

Medicare only 

facilities cost 

per resident 

day 

Medicare and 

Medicaid 

facilities 

needing RNs 

Medicare and 

Medicaid 

facilities 

cost per 

resident day 

Alabama .................................................................................... 2 $5.10 1 $0.94 15 $3.14 

Alaska ........................................................................................ 0 0.00 0 0.00 2 20.75 

Arizona ...................................................................................... 0 0.00 2 34.70 10 3.75 

Arkansas ................................................................................... 1 3.76 0 0.00 111 3.61 

California ................................................................................... 11 9.11 13 20.26 273 7.54 

Colorado .................................................................................... 3 23.37 0 0.00 13 6.41 


lotter on DSK11XQN23PROD with PROPOSALS2
Federal Register / Vol. 88, No. 171 / Wednesday, September 6, 2023 / Proposed Rules 61405 

TABLE 19—NUMBER OF LTC FACILITIES IN STATE NEEDING TO HIRE STAFF AND AVERAGE COST PER RESIDENT DAY BY

MEDICARE, MEDICAID, AND DUAL ACCEPTANCE STATUS TO SATISFY 24/7 RN REQUIREMENT—Continued 

[Absent exemption] 

State 

Medicaid only 

facilities 

needing RNs 

Medicaid only 

facilities cost 

per resident 

day 

Medicare only 

facilities 

needing RNs 

Medicare only 

facilities cost 

per resident 

day 

Medicare and 

Medicaid 

facilities 

needing RNs 

Medicare and 

Medicaid 

facilities 

cost per 

resident day 

Connecticut ............................................................................... 0 0.00 0 0.00 3 6.24 

Delaware ................................................................................... 0 0.00 1 87.45 0 0.00 

District of Columbia ................................................................... 0 0.00 0 0.00 0 0.00 

Florida ....................................................................................... 0 0.00 2 10.71 24 3.81 

Georgia ...................................................................................... 1 26.52 2 34.37 121 4.75 

Hawaii ........................................................................................ 0 0.00 0 0.00 1 10.08 

Idaho ......................................................................................... 0 0.00 1 1.86 12 6.68 

Illinois ........................................................................................ 10 5.35 0 0.00 113 7.10 

Indiana ....................................................................................... 4 7.88 2 20.15 112 5.50 

Iowa ........................................................................................... 2 5.26 1 12.90 129 6.09 

Kansas ...................................................................................... 19 10.72 0 0.00 89 6.52 

Kentucky .................................................................................... 0 0.00 1 0.68 15 4.78 

Louisiana ................................................................................... 0 0.00 6 6.74 170 4.48 

Maine ......................................................................................... 0 0.00 0 0.00 10 5.38 

Maryland .................................................................................... 0 0.00 4 7.68 4 5.23 

Massachusetts .......................................................................... 0 0.00 2 10.03 25 6.58 

Michigan .................................................................................... 1 14.48 0 0.00 42 5.42 

Minnesota .................................................................................. 3 8.26 0 0.00 28 4.75 

Mississippi ................................................................................. 5 4.45 1 23.67 31 3.31 

Missouri ..................................................................................... 6 11.30 2 3.08 219 5.68 

Montana .................................................................................... 0 0.00 0 0.00 21 6.16 

Nebraska ................................................................................... 5 13.34 0 0.00 53 7.28 

Nevada ...................................................................................... 0 0.00 0 0.00 4 21.81 

New Hampshire ......................................................................... 0 0.00 0 0.00 8 8.54 

New Jersey ............................................................................... 0 0.00 2 5.28 19 4.38 

New Mexico ............................................................................... 1 5.96 0 0.00 11 4.95 

New York ................................................................................... 0 0.00 0 0.00 26 5.57 

North Carolina ........................................................................... 0 0.00 8 70.04 56 3.24 

North Dakota ............................................................................. 0 0.00 0 0.00 9 6.94 

Ohio ........................................................................................... 0 0.00 4 12.33 208 4.81 

Oklahoma .................................................................................. 5 18.96 1 0.01 191 7.58 

Oregon ...................................................................................... 3 4.27 2 23.40 29 8.89 

Pennsylvania ............................................................................. 0 0.00 2 21.85 8 3.66 

Puerto Rico ............................................................................... 0 0.00 0 0.00 0 0.00 

Rhode Island ............................................................................. 0 0.00 0 0.00 0 0.00 

South Carolina .......................................................................... 0 0.00 10 12.96 23 3.43 

South Dakota ............................................................................ 4 5.18 0 0.00 19 5.70 

Tennessee ................................................................................. 4 14.91 2 4.78 47 3.51 

Texas ......................................................................................... 14 9.00 11 9.40 620 6.18 

Utah ........................................................................................... 2 3.04 1 8.08 7 5.34 

Vermont ..................................................................................... 0 0.00 0 0.00 5 5.42 

Virginia ...................................................................................... 4 7.68 3 2.82 20 2.88 

Washington ............................................................................... 0 0.00 0 0.00 8 6.76 

West Virginia ............................................................................. 3 19.82 0 0.00 7 5.00 

Wisconsin .................................................................................. 1 26.97 2 12.89 27 6.73 

Wyoming ................................................................................... 0 0.00 0 0.00 5 8.60 

United States ..................................................................... 114 9.22 89 13.44 3,003 5.72 

(3) Minimum Nurse Staffing 

Requirement of at Least 0.55 RN and 

2.45 NA HPRD 

To estimate the incremental impact of 

the minimum nurse staffing requirement 

of 0.55 RN and 2.45 NA HPRD, we first 

estimated the industry’s aggregate 

annual cost for nurse staff (RNs, LPNs/ 

LVNS, and NAs) at current staffing 

levels. We then estimated the aggregate 

annual cost for nurse staff (RNs, LPNs/ 

LVNs, and NAs) for all facilities to meet 

the minimum requirement. As 

discussed above, we note that the 

minimum staffing requirements are 

applied independent of a facility’s 

individual case-mix, meaning the 

expected costs to a facility are based 

solely on the cost of facilities adding 

additional staff to meet the 0.55 RN and 

2.45 NA HPRD based on the facility’s 

current staffing data, regardless of the 

facility’s case-mix. Finally, we 

calculated the requirement’s expected 

cost to the industry by subtracting the 

industry’s current nurse staff cost from 

the estimated nurse staff cost for all 

facilities to meet the minimum 

requirement (Nurse Staff Cost for All 

Facilities to Meet Minimum 

Requirement—All Facilities’ Current 

Nurse Staff Cost). To measure the 

current nurse staffing cost to the 

industry, we estimated the total number 

of nurse staff currently employed in 

LTC facilities and their loaded 

respective labor wages. This study used 

the 2021 SNF—Medicare Cost Report 

dataset to find the total of facilities, the 

total number of reported LTC specific 

nurse-type staff and their loaded annual 

salaries, defined as salary and fringe 

benefits. Using this dataset, we were 

able to estimate the aggregate total nurse 

staffing salary costs and the cost per 

facility. 

To estimate the nurse staffing cost by 

staff type, that is, RNs, LPNs/LVNs, 

NAs, per resident census we used the 

October 2021 Care Compare data set 

that calculates average hours per 

resident day (HPRD) for each nurse type 

using the PBJ System data from 2021 

Q2. Hours per resident day was defined 

as the average hours of care that each 

resident in the facility receives from that 

nurse type. For example, a facility that 


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176Calculated as the sum of reported salary costs 

for total nurse staff across all LTC facilities in the 

study sample. More specifically, Total annual salary 

costs for all LTC facilities = S14,668i=1 Annual salary 

costs for total nurse staffi. 

177Appropriate accounting of costs depends on 

consistency with the benefits to which they are 

compared. The overall change in staffing cost 

(increasing nursing staff cost, net of housekeeping, 

food service and activities-staff costs—which are 

potentially decreasing) would appropriately be 

compared with a benefits estimate that also reflects 

net staffing changes; a quantitative approach to 

such benefits might extrapolate from reduced-form 

estimates of the effects on patients of other 

jurisdictions’ nursing staffing requirements. By 

contrast, if benefits assessment reflects an explicit 

or implicit assumption that new nursing staff spend 

all their time on nursing activities—not newly 

covering any of the duties that would have been 

performed by lost housekeeping, food service or 

activities staff—then costs from a society-wide 

perspective are approximated by the (gross) new 

nursing staffing costs. In other words, in the latter 

case, a focus only on payroll effects would omit the 

harms to consumer satisfaction and conditions for 

remaining staff due to reductions in housekeeping, 

food service and activities. 

had an average HPRD of 0.5 for RNs 

would provide, on average, 0.5 hours 

(30 minutes) of RN care for each 

resident. We linked this dataset using 

the facility unique ID variable with the 

2021 SNF—Medicare Cost Report data 

set to create a complete dataset. Using 

this combined dataset, we were also 

able to view the impact by staff type per 

resident census as well as the impact by 

LTC facility characteristics such as 

facility ownership, bed size, Five-Star 

Quality Rating System staffing ratings, 

payer mix, and location. This complete 

dataset helped provide an 

understanding of which types of LTC 

facilities would bear the largest cost 

burden of a new Federal minimum 

staffing requirement. 

Using the above dataset, we estimated 

each facility’s current total annual 

salary costs for each nurse type (RN, 

LPN/LVN, NA) as follows: [facility 

specific nurse type] loaded hourly wage 

× [facility specific nurse type] reported 

HPRD × facility-level average daily 

facility resident census × 365. For 

example, if a facility reported an average 

loaded hourly wage of $44 for its RNs, 

an average of 0.4 RN HPRD, and an 

average daily resident census of 100, its 

estimated annual salary costs for RNs 

would be calculated as: $44 × 0.4 × 100 

× 365 = $642,400. Taking this example 

further, if this same facility reported a 

loaded average hourly wage of $21 for 

its NAs, an average of 2.1 NA HPRD, 

and an average daily resident census of 

100, its estimated annual salary costs for 

NAs would be calculated as: $21 × 2.1 

× 100 × 365 = $1,609,650. If this facility 

only employed RNs and NAs as part of 

its total nurse staff, then the facility’s 

current total nurse staff cost would be 

$2,252,050 ($642,400 + $1,609,650 = 

$2,252,050). To estimate the aggregate 

current nurse staff cost across all 

facilities, the next step was to sum all 

facilities’ current total (RN, LPN/LVN, 

and NA) nurse staff cost for an overall 

industry nurse staff cost of $43.4 

billion.176 To estimate the cost of the 

minimum nurse staffing requirement, 

we subtracted the total current nurse 

staff cost per facility from the total nurse 

staff cost per facility with the minimum 

nurse staffing standard. The formula 

applied to calculate each facility’s cost 

of meeting the requirement per specific 

nurse type was: [facility specific nurse 

type] hourly wage × [[facility specific 

nurse type] required HPRD ¥ [facility 

specific nurse type] reported HPRD] × 

facility level average daily resident 

census × 365. Using the same LTC 

facility example from the paragraph 

above where the facility had an average 

of 0.4 RN HPRD and 2.1 NA HPRD, for 

this LTC facility to comply it would 

need to increase its RN HPRD from 0.4 

to 0.55 and NA HPRD from 2.1 to 2.45. 

The cost for this requirement on this 

facility would thus be $509,175 (($44 × 

(0.55¥0.4) × 100 × 365) + ($21 × 

(2.45¥2.1) × 100 × 365) = $509,175). 

When LTC facilities hire RNs to meet 

the 24/7 RN requirement, the hours 

these RNs work will also count toward 

the 0.55 RN HPRD requirement. To 

avoid overestimating the number of RNs 

that LTC facilities will need to hire and 

the cost to hire them, if a LTC facility 

has less than 0.55 RN HPRD, we 

subtracted any cost that the facility 

would incur to meet the 24/7 RN 

requirement up to the point where the 

LTC facility will meet the 0.55 RN 

HPRD requirement using the following 

formula: [facility specific cost to meet 

0.55 RN and 2.45 NA HPRD 

Requirement]¥[Facility Cost to Meet 

24/7 RN Requirement]. 

Once we apply this formula to each 

facility in our dataset, we summed each 

facility’s total cost to obtain the 

requirement cost to the industry of 

approximately $4.23 billion. 

This $4.23 billion estimate assumed 

that LTC facilities would respond to the 

minimum nurse staffing requirement by 

increasing their RN and their NA 

staffing levels to the minimum 

necessary levels, without reducing other 

staff, such as administrative staff. We 

also assumed that LTC facilities would 

not obtain exemptions from the 

minimum staffing requirement. Finally, 

we assumed LTC facilities that were 

above the minimum staffing 

requirements for RNs and NAs would 

not decrease their current staffing levels 

and that owners of LTC chain facilities 

would not shift staff from facilities 

above the minimum proposed 

requirement to facilities below the 

minimum proposed requirement.177

If LTC facilities covered under this 

proposed rule reduced other staff not 

covered by the rule, owners of LTC 

chain facilities shifted RN and NAs to 

other facilities below the requirements, 

or if LTC facilities obtained exemptions 

from the minimum staffing 

requirements the $4.23 billion estimate 

may decline significantly. Any 

reduction in other staff, however, could 

also impose costs on residents due to 

reductions in support activities, such as 

housekeeping and food service, that 

contribute to quality of life in the LTC 

facility. As such, we seek comments on 

all the assumptions used in these cost 

models. 

Table 20 summarizes the estimated 

total cost for the comprehensive 

minimum nurse staffing requirement 

which includes any associated 

collection of information costs as 

described in section IV. Collection of 

Information Requirements, but not the 

regulatory review costs which we 

discuss in more detail later in this 

section. To account for real growth in 

RN and NA wages over time, we used 

the same assumption that we used to 

estimate the cost of the 24/7 RN 

requirement. More specifically, we 

assumed that real wages for RNs and 

NAs needed to meet the proposed 0.55 

RN and 2.45 HPRD requirement, as well 

as collection of information costs, 

would increase at 2.31 percent annually. 

Since rural and urban LTC facilities 

have different phase-in periods to meet 

the 24/7 RN (2 years for facilities in 

urban areas and 3 years for facilities in 

rural areas) and the 0.55 RN and 2.45 

NA HPRD requirements (3 years for 

facilities in urban areas and 5 years for 

facilities in rural areas) we provided 

separate cost estimates for facilities 

located in each area. Over a 10-year 

period, we anticipate an average annual 

cost of approximately $4.06 billion. 


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TABLE 20—ANNUAL COST FOR THE COMPREHENSIVE MINIMUM NURSE STAFFING REQUIREMENT

Year 

Collection of 

information costs 

for 24/7 RN 

(§ 483.35 nursing 

services) 

Collection of 

information costs 

for facility 

assessment 

(§ 483.71 facility 

assessment) 

24/7 RN 

requirement 

(urban facilities) 

24/7 RN 

requirement 

(rural facilities) 

0.55 RN and 

2.45 NA HPRD 

requirement 

(urban facilities) 

0.55 RN and 

2.45 NA HPRD 

requirement 

(rural facilities) 

Total cost 

1 .......................... $7,461,504.00 $24,176,448.00 $0.00 $0.00 $0 $0 $31,637,952 

2 .......................... 7,633,864.74 24,734,923.95 213,764,107.41 0.00 0 0 246,132,896 

3 .......................... 7,810,207.02 25,306,300.69 218,702,058.29 146,603,030.04 3,662,915,945 0 4,061,337,541 

4 .......................... 7,990,622.80 25,890,876.24 223,754,075.83 149,989,560.03 3,747,529,303 0 4,155,154,438 

5 .......................... 8,175,206.19 26,488,955.48 228,922,794.98 153,454,318.87 3,834,097,230 803,377,179 5,054,515,685 

6 .......................... 8,364,053.45 27,100,850.35 234,210,911.55 156,999,113.64 3,922,664,876 821,935,192 5,171,274,997 

7 .......................... 8,557,263.08 27,726,879.99 239,621,183.61 160,625,793.16 4,013,278,435 840,921,895 5,290,731,450 

8 .......................... 8,754,935.86 28,367,370.92 245,156,432.95 164,336,248.98 4,105,985,167 860,347,191 5,412,947,346 

9 .......................... 8,957,174.88 29,022,657.19 250,819,546.55 168,132,416.34 4,200,833,424 880,221,211 5,537,986,430 

10 ........................ 9,164,085.62 29,693,080.57 256,613,478.07 172,016,275.15 4,297,872,676 900,554,321 5,665,913,916 

10 Year Total 

Cost .......... 82,868,918 268,508,343 2,111,564,589 1,272,156,756 31,785,177,057 5,107,356,989 40,627,632,652 

This proposed rule does not include 

any provisions requiring Medicare, 

Medicaid or other non-Medicare/ 

Medicaid payors to increase payment 

rates to providers to meet any or all the 

expected costs of the proposed 

requirements. Below, however, we 

provide estimates of how much of this 

estimated cost would be due to 

residents whose care is covered by three 

payor groups: Medicaid, Medicare, and 

other non-Medicare/Medicaid payors. 

Table 21 provides annual estimates 

and a 10-year total estimate for the share 

of facilities’ increased staffing costs that 

would be due to residents utilizing 

Medicaid. These estimates excluded all 

collection of information costs. Over a 

10-year period, the average annual cost 

for facilities’ due to residents whose 

stay is paid for by Medicaid would be 

approximately $2.69 billion. If Medicaid 

were to fully cover these costs (although 

there is no expectation that it will), then 

States would pay $1.1 billion and the 

Federal government would pay $1.57 

billion. 

To build these estimates, we used a 

scenario where facilities’ increased cost 

to meet the new minimum staffing and 

24/7 RN requirement for residents 

utilizing Medicaid was equal to share of 

residents in the facility using Medicaid. 

More formally, we first calculated each 

facility’s increased cost for these 

residents using the following formula: 

Increased Facility Cost for Medicaid 

Residents = (minimum staffing 

requirement cost + 24/7 RN staffing 

requirement cost) × (% facility residents 

covered by Medicaid). We then summed 

all facilities’ share of increased costs 

that was due to residents utilizing 

Medicaid to the obtain a total estimated 

cost of $26.9 billion over 10 years. 

To provide further details about the 

facilities’ share of the total minimum 

staffing and 24/7 RN requirements’ cost 

that is due to resident utilizing 

Medicaid, we broke down the Medicaid 

costs into how the costs would typically 

be divided between the Federal and 

State Medicaid programs. For these 

estimates, we assumed that the Federal 

Medicaid share would be equal to the 

State’s FMAP (Federal Medical 

Assistance Percentage), while each 

State’s share would be equal to the 

remaining amount (1–FMAP). Using this 

strategy, we estimated that States’ 

portion of the Medicaid cost would be 

approximately $11.1 billion over 10 

years, while the Federal government’s 

portion of the Medicaid cost would be 

$15.7 billion. 

Table 22 provides annual estimates 

and a 10-year estimate for the share of 

facilities’ increased labor costs that 

would be due to residents whose care 

was covered by Medicare and other nonMedicare/Medicaid payors. These 

estimates continue to exclude all 

collection of information costs. Over a 

10-year period, facilities’ annual cost to 

meet the proposed requirements would 

be approximately $454 million for 

residents utilizing Medicare and $886 

million for residents utilizing other nonMedicare/Medicaid payors. 

To obtain these estimates, we used a 

scenario where the cost facilities would 

incur to meet the new minimum staffing 

and 24/7 RN requirements for residents 

utilizing Medicare and other nonMedicare/Medicaid payors would be 

equal to the share of residents covered 

by Medicare and non-Medicare/ 

Medicaid payors in each facility. 

To obtain the total cost due to 

residents utilizing Medicare, we first 

calculated each facility’s increased 

staffing cost for residents utilizing 

Medicare using the following formula: 

Increased Facility Cost for Medicare 

Residents = (minimum staffing 

requirement cost + 24/7 RN staffing 

requirement cost) × (% facility residents 

covered by Medicare). We then summed 

all facilities’ increased costs that was 

due to residents utilizing Medicare to 

the obtain a total estimated cost for 

Medicare of $4.54 billion over 10 years. 

To obtain the total cost due to residents 

utilizing other non-Medicare/Medicaid 

payors, we first calculated each facility’s 

increased cost for residents using a nonMedicare/Medicaid payor using the 

following formula: Increased Facility 

Cost for Non-Medicare/Medicaid Payors 

= (minimum staffing requirement cost + 

24/7 RN staffing requirement cost) × (% 

facility residents covered by nonMedicare/Medicaid Payors). We then 

summed all facilities’ increased costs 

that were due to residents utilizing 

other Non-Medicare/Medicaid payors to 

obtain a total estimated cost of $8.86 

billion over 10 years. 


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As previously stated, this rule does 

not include any provisions requiring 

Medicare to increase payment rates to 

providers to meet any or all the 

expected costs of the proposed 

requirements. With specific regards to 


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178Thomas, Kali S., Kathryn Hyer, Ross Andel, 

and Robert Weech-Maldonado. The Unintended 

Consequences of Staffing Mandates in Florida 

Nursing Homes: Impacts on Indirect-Care Staff, 

2010, Medicare Care Research and Review, Volume 

67, Issue 5, Page 555–573. 

179Bowblis, John R., and Kathryn Hyer. Nursing 

Home Staffing Requirements and Input 

Substitution: Effects on Housekeeping, Food 

Service, and Activities Staff, 2013, Health Services 

Reseach, Volume 48, Issue 4, Pages: 1539–1550. 

the SNF PPS, we do not believe this rule 

will have meaningful impacts on SNF 

PPS payment rates. Under section 

1888(e)(4) of the Act, the SNF PPS uses 

per diem Federal payment rates based 

on mean SNF costs in a base year (FY 

1995) updated for inflation to the first 

effective period of the PPS. Section 

1888(e)(5)(A) of the Act requires us to 

establish a SNF market basket that 

reflects changes over time in the prices 

of an appropriate mix of goods and 

services included in covered SNF 

services. The SNF market basket is used 

to compute the market basket 

percentage increase that is used to 

update the SNF Federal rates on an 

annual basis, as required by section 

1888(e)(4)(ii)(IV) of the Act. While this 

rule may have minimal impacts on the 

calculation of the SNF market basket 

percentage, which could impact annual 

updates to the SNF PPS rates, we 

believe that these impacts would be 

limited. 

Additionally, under section 

1888(e)(4)(G)(i) of the Act, the Federal 

rate also incorporates an adjustment to 

account for facility case-mix, using a 

classification system that accounts for 

the relative resource utilization of 

different patient types. The statute 

specifies that the adjustment is to reflect 

both a resident classification system that 

the Secretary establishes to account for 

the relative resource use of different 

patient types, as well as resident 

assessment data and other data that the 

Secretary considers appropriate. While 

we understand that increased staffing 

will have an impact on facility costs, we 

do not believe that these additional 

costs fall within the scope of relative 

resource utilization of different patient 

types. Since this rule impacts the 

facility as a whole, rather than 

individual patient types, we do not 

believe that the rule would impact 

adjustments made under the SNF PPS to 

account for facility case-mix. 

Finally, section 1888(e)(4)(G)(ii) of the 

Act requires that we adjust the Federal 

rates to account for differences in area 

wage levels, using a wage index that the 

Secretary determines appropriate. Since 

the inception of the SNF PPS, we have 

used hospital inpatient wage data in 

developing a wage index to be applied 

to SNFs. As noted most recently in the 

FY 2024 SNF PPS final rule (88 FR 

53211), we continue to use this practice 

in FY 2024. Given that the wage index 

used under the SNF PPS is based on 

analysis of hospital wages and staffing 

hours and because this rule will impact 

only on SNF wages and staffing hours, 

we do not anticipate that the impacts of 

this rule will be reflected in the SNF 

PPS wage index. We understand that, as 

discussed in the FY 2024 SNF PPS final 

rule (88 FR 53212), there have been 

comments encouraging CMS to develop 

a wage index adjustment under the SNF 

PPS that uses SNF wages and staffing 

hours as the basis for calculating the 

adjustment. However, as we state in that 

rule, 

We note that section 315 of the Medicare, 

Medicaid, and SCHIP Benefits Improvement 

and Protection Act of 2000 (BIPA) (Pub. L. 

106–554, enacted December 21, 2000) gave 

the Secretary the discretion to establish a 

geographic reclassification procedure specific 

to SNFs, but only after collecting the data 

necessary to establish a SNF PPS wage index 

that is based on wage data from nursing 

homes. To date, this has proven to be 

unfeasible due to the volatility of existing 

SNF wage data and the significant amount of 

resources that would be required to improve 

the quality of the data. More specifically, 

auditing all SNF cost reports, similar to the 

process used to audit inpatient hospital cost 

reports for purposes of the IPPS wage index, 

would place a burden on providers in terms 

of recordkeeping and completion of the cost 

report worksheet. Adopting such an 

approach would require a significant 

commitment of resources by CMS and the 

Medicare Administrative Contractors 

(MACs), potentially far in excess of those 

required under the IPPS, given that there are 

nearly five times as many SNFs as there are 

inpatient hospitals. While we continue to 

believe that the development of such an audit 

process could improve SNF cost reports, 

which is determined to be adequately 

accurate for cost development purposes, in 

such a manner as to permit us to establish 

a SNF-specific wage index, we do not believe 

this undertaking is feasible. (88 FR 53212). 

We solicit comment on these 

assumptions regarding the impact of 

this rule on the rates paid under the 

SNF PPS. 

Sources of uncertainty about the cost 

estimate for the 24/7 RN and 0.55 RN 

and 2.45 NA HPRD requirement 

include: 

The cost estimate assumed that LTC 

facilities needing RNs and/or NAs to 

meet these requirements will hire them 

without laying off other direct care or 

support staff. Some research,178 179

however, has found that when States 

implemented minimum hour per day 

requirements for direct care staff (RNs, 

LPNs, and NAs), LTC facilities 

responded by reducing indirect care 

staff, such as housekeeping, food 

service, and activities staff. If LTC 

facilities responded to the 24/7 RN and 

0.55 and 2.45 NA requirement in similar 

ways, then a facility’s total cost for the 

requirements could decline significantly 

relative to what was presented above 

(see earlier discussion about appropriate 

accounting of costs depending on 

consistency between benefit and cost 

analytic approaches). 

The cost estimate assumed that real 

wages for RNs and NAs would grow at 

an annual rate of 2.31 percent due to 

increasing demand for these direct care 

staff. Differences in demand for RNs and 

NAs across geographical areas, however, 

could lead to wages in different areas to 

increase at different rates, altering the 

cost for LTC facilities. 

The 24/7 cost estimate assumed that 

RNs would make the average hourly rate 

for RNs in the facility. If, however, LTC 

facilities needed to hire RNs to work 

overnight shifts, which typically 

command a higher hourly rate, the costs 

for LTC facilities to meet this 

requirement could increase. 

The cost estimate assumed that no 

LTC facilities would obtain exemptions 

from the 0.55 RN and 2.45 NA HPRD 

requirements, although some facilities 

could obtain an exemption. Our analysis 

suggests that using the criteria of being 

located in an area with a medium 

staffing shortage, which is defined as 

the area having an RN and/or NA to 

population ratio that is 20 percent 

below the national average, or being 

located 20-miles from the nearest LTC 

facility, up to 24 percent of LTC 

facilities would meet the initial criteria 

for an exemption from the 2.45 NA 

HPRD requirement while 28 percent 

would be eligible for an exemption from 

the 0.55 RN HPRD requirement. 

Depending on the number of facilities 

that obtained an exemption and their 

expected cost to meet the HPRD 

requirement, the total cost of the rule for 

LTC facilities could decline 

significantly. 

In addition to uncertainty about the 

magnitude of costs, there is uncertainty 

about whether LTC facilities or other 

entities in society would bear the cost 

of meeting the minimum staffing and 

24/7 RN requirements. Payors might 

increase payment rates to meet some or 

all the rule’s cost, which could reduce 

the cost for LTC facilities relative to 

what is estimated above. 

We welcome any comments regarding 

the methodology that resulted in an 

estimated cost of approximately $40.63 

billion over a 10-year period for the 

Comprehensive Minimum Nurse 

Staffing Requirement and on the 

potential State and Federal Medicaid 

impact, as well as the potential impact 


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on Medicare and other non-Medicare/ 

Medicaid payors. We are also soliciting 

comments on all the assumptions we 

used in our estimate, especially how the 

available supply of RNs and NAs in 

different areas nationwide may 

influence the proposed rule’s cost for 

LTC facilities and other health care 

providers competing for the same 

supply of RNs and NAs. Finally, we are 

seeking comments on how LTC chain 

ownership may lead to a shifting of 

employees across facilities from those 

facilities that are exceeding the 

proposed minimum staffing 

requirements to those that are below it. 

(4) Impact of 0.55 RN and 2.45 NA 

HPRD Requirement on States 

To provide a more in-depth 

understanding of the financial and 

staffing effects of the 0.55 RN HPRD and 

2.45 NA HPRD proposed minimum 

requirement, we examined its impact for 

different groups of LTC facilities in each 

State, as well as Washington, DC and 

Puerto Rico. We first assessed how 

many full-time employees LTC facilities 

would need to hire to meet the proposed 

requirement. In this analysis, we 

defined a full-time employee as an 

employee who worked 1,950 hours per 

year. This definition was based on a 

full-time employee working 5 days per 

week, 8 hours per day, with a 30-minute 

break (37.5 hours/week × 52 weeks/ 

year). We continued to assume that no 

facilities would obtain exemptions from 

the minimum staffing requirement. We 

also continued to subtract any cost that 

facilities incur or employees they would 

need to hire to meet the 24/7 RN 

requirements up to 0.55 RN HPRD. All 

calculations used the October 2021 Care 

Compare data set that provided each 

LTC facility’s average daily resident 

census and HPRD for RNs, LPNs/LVNs 

and NAs using the PBJ System data from 

2021 Q2. 

For each facility, we first calculated 

the total number of full-time RNs, LPN/ 

LVNs, and NAs working in a facility 

using the following formula: (facility 

specific care type HPRD × Average daily 

resident census × 365)/1,950. For 

example, if a facility has 10 residents 

and provides an average of 0.1 RN 

HPRD, then during the year, it will 

provide a total of 365 hours of RN care 

(0.1 RN HPRD × 10 residents × 365 days) 

yearly and have 0.187 full-time RNs. We 

then calculated the number of 

additional RNs needed by subtracting 

the current average hours per resident 

day for RNs from the minimum required 

hours per resident day. Continuing with 

our example in this section, the LTC 

facility would need to provide 1,642.5 

additional RN hours per year ([0.55 RN 

HPRD¥0.1 HPRD] × 10 residents × 365 

days = 1642.5 hours) and hire 0.84 

additional full-time RNs. 

To calculate the total number of 

additional NAs needed we subtracted 

the current average hours per resident 

day for NAs from the minimum required 

hours per resident day. For example, if 

the same facility as previously 

mentioned with 10 residents provided 

an average of 2.2 NA HPRD, then to 

meet the 2.45 HPRD requirement it 

would need to provide 912.5 additional 

NA hours per year ([2.45 NA HPRD¥2.2 

NA HPRD] × 10 residents × 365 days = 

912.5 hours) and hire 0.47 (912.5 hours 

needed/1,950 hours yearly per full-time 

employee) full-time NAs. 

Table 23 shows the total number of 

RNs and NAs employed by LTC 

facilities in each State’s urban areas, the 

number of full-time RNs and NAs that 

LTC facilities would need to hire, and 

the percent increase in RNs and NAs 

that LTC facilities in each State would 

need to meet the proposed minimum 

staffing standard. Table 24 provides the 

same information for LTC facilities 

located in each State’s rural areas. 

Louisiana would need the largest 

increase in RNs in percentage terms. 

The number of full-time RNs in urban 

LTC facilities would need to increase by 

nearly 96 percent, while rural LTCs 

would need to increase the number of 

RNs by more than 73 percent to meet 

minimum standard. Facilities in Texas 

would need to hire the most overall RNs 

with the State needing 1,615 additional 

full-time RNs in urban areas and more 

than 311 RNs in rural areas. Across the 

United States, however, the number of 

RNs that facilities would need to hire 

varies widely, with several States, 

including Delaware and Hawaii, not 

needing to hire any RNs to meet the 

requirement. 

Illinois would need the largest 

percentage increase for NAs in urban 

areas. The State would need to add 

nearly 6,000 full-time NAs and increase 

the overall number of NAs working in 

LTC facilities by more than 42 percent. 

Similar to RNs, however, there would be 

wide variation in the percentage 

increase in NAs across States. Florida, 

for example, would need to increase the 

size of its NA labor force in LTC 

facilities by less than 2 percent to meet 

the requirement. 

TABLE 23—CURRENT AND ADDITIONAL FULL-TIME RNS AND NAS NEEDED PER STATE TO MEET 0.55 RN AND 2.45 NA 

HPRD STAFFING REQUIREMENT FOR URBAN LTC FACILITIES

State Existing fulltime RNs 

Additional RNs 

needed 

Percent 

increase in 

RNs needed 

Existing fulltime NAs Additional NAs 

needed 

Percent 

increase in 

NAs needed 

Alabama .................................................................................... 1,416 129 9.1 5,011 922 18.4 

Alaska ........................................................................................ 108 0 0 216 3 1.2 

Arizona ...................................................................................... 1,247 101 8.1 4,036 651 16.1 

Arkansas ................................................................................... 559 220 39.3 3,775 199 5.3 

California ................................................................................... 9,461 1,390 14.7 40,659 1,734 4.3 

Colorado .................................................................................... 2,026 9 0.5 4,687 718 15.3 

Connecticut ............................................................................... 2,145 122 5.7 6,735 1,136 16.9 

Delaware ................................................................................... 648 0 0 1,376 259 18.8 

District of Columbia ................................................................... 468 0 0 923 45 4.9 

Florida ....................................................................................... 8,208 390 4.8 29,310 414 1.4 

Georgia ...................................................................................... 1,469 443 30.1 6,446 1,996 31 

Hawaii ........................................................................................ 743 0 0 1,289 28 2.2 

Idaho ......................................................................................... 437 1 0.2 1,176 105 8.9 

Illinois ........................................................................................ 5,965 551 9.2 13,944 5,985 42.9

Indiana ....................................................................................... 2,611 261 10 8,917 2,087 23.4 

Iowa ........................................................................................... 1,254 28 2.2 4,010 367 9.2 

Kansas ...................................................................................... 1,054 51 4.8 3,652 369 10.1 

Kentucky .................................................................................... 1,249 100 8 3,997 787 19.7 

Louisiana ................................................................................... 762 730 95.9 6,306 1,225 19.4 

Maine ......................................................................................... 576 3 0.5 1,499 36 2.4 

Maryland .................................................................................... 2,939 47 1.6 7,572 1,588 21 

Massachusetts .......................................................................... 3,973 191 4.8 12,156 2,184 18 

Michigan .................................................................................... 3,050 235 7.7 8,862 2,268 25.6 


lotter on DSK11XQN23PROD with PROPOSALS2
61412 Federal Register / Vol. 88, No. 171 / Wednesday, September 6, 2023 / Proposed Rules 

TABLE 23—CURRENT AND ADDITIONAL FULL-TIME RNS AND NAS NEEDED PER STATE TO MEET 0.55 RN AND 2.45 NA 

HPRD STAFFING REQUIREMENT FOR URBAN LTC FACILITIES—Continued 

State Existing fulltime RNs 

Additional RNs 

needed 

Percent 

increase in 

RNs needed 

Existing fulltime NAs Additional NAs 

needed 

Percent 

increase in 

NAs needed 

Minnesota .................................................................................. 2,968 3 0.1 6,267 573 9.1 

Mississippi ................................................................................. 509 68 13.3 1,955 319 16.3 

Missouri ..................................................................................... 1,707 442 25.9 7,786 1,504 19.3 

Montana .................................................................................... 163 4 2.2 487 88 18.1 

Nebraska ................................................................................... 743 17 2.3 2,313 139 6 

Nevada ...................................................................................... 667 45 6.7 1,796 328 18.3 

New Hampshire ......................................................................... 388 13 3.4 1,256 168 13.3 

New Jersey ............................................................................... 4,756 335 7 13,412 2,856 21.3 

New Mexico ............................................................................... 324 27 8.2 1,184 194 16.4 

New York ................................................................................... 10,277 745 7.2 32,047 5,904 18.4 

North Carolina ........................................................................... 2,381 376 15.8 9,175 1,774 19.3 

North Dakota ............................................................................. 313 1 0.4 1,176 12 1 

Ohio ........................................................................................... 5,169 521 10.1 16,844 4,552 27 

Oklahoma .................................................................................. 568 203 35.7 3,725 333 8.9 

Oregon ...................................................................................... 762 17 2.3 3,170 14 0.4 

Pennsylvania ............................................................................. 7,575 242 3.2 20,086 4,917 24.5 

Puerto Rico ............................................................................... 29 0 0 0 26 ........................

Rhode Island ............................................................................. 947 14 1.5 2,752 284 10.3 

South Carolina .......................................................................... 1,325 163 12.3 4,793 794 16.6 

South Dakota ............................................................................ 240 0 0 618 88 14.2 

Tennessee ................................................................................. 1,693 230 13.6 6,047 1,495 24.7 

Texas ......................................................................................... 4,451 1,615 36.3 21,663 6,101 28.2 

Utah ........................................................................................... 926 2 0.2 2,012 197 9.8 

Vermont ..................................................................................... 72 4 5 239 24 10.1 

Virginia ...................................................................................... 1,951 344 17.6 6,838 2,148 31.4 

Washington ............................................................................... 1,967 22 1.1 5,257 311 5.9 

West Virginia ............................................................................. 682 22 3.2 1,987 431 21.7 

Wisconsin .................................................................................. 2,214 16 0.7 5,220 619 11.9 

Wyoming ................................................................................... 85 3 3.4 212 51 23.9 

United States ..................................................................... 108,220 10,495 9.7 356,871 61,348 17.2 

TABLE 24—CURRENT AND ADDITIONAL FULL-TIME RNS AND NAS NEEDED PER STATE TO MEET 0.55 RN AND 2.45 NA 

HPRD STAFFING REQUIREMENT FOR RURAL LTC FACILITIES

State Existing fulltime RNs 

Additional RNs 

needed 

% Increase in 

RNs needed 

Existing fulltime NAs Additional NAs 

needed 

% Increase in 

NAs needed 

Alabama .................................................................................... 721 69 9.5 2,884 280 9.7 

Alaska ........................................................................................ 108 0 0 256 0 0 

Arizona ...................................................................................... 60 4 6.4 169 60 35.2 

Arkansas ................................................................................... 487 115 23.6 2,930 159 5.4 

California ................................................................................... 150 37 24.5 847 32 3.8 

Colorado .................................................................................... 374 6 1.5 1,080 89 8.3 

Connecticut ............................................................................... 118 6 4.6 379 68 18.1 

Delaware ................................................................................... 0 0 ........................ 0 0 ........................

District of Columbia ................................................................... 0 0 ........................ 0 0 ........................

Florida ....................................................................................... 286 51 17.9 1,501 23 1.5 

Georgia ...................................................................................... 732 177 24.2 3,147 954 30.3 

Hawaii ........................................................................................ 177 0 0 393 33 8.5 

Idaho ......................................................................................... 163 1 0.6 542 21 3.8 

Illinois ........................................................................................ 1,049 85 8.1 3,519 961 27.3 

Indiana ....................................................................................... 1,147 51 4.5 3,510 740 21.1 

Iowa ........................................................................................... 1,458 29 2 4,789 534 11.1 

Kansas ...................................................................................... 862 10 1.1 3,224 130 4 

Kentucky .................................................................................... 1,212 70 5.8 4,011 543 13.5 

Louisiana ................................................................................... 262 192 73.4 2,166 284 13.1 

Maine ......................................................................................... 403 0 0 1,151 5 0.4 

Maryland .................................................................................... 125 0 0 353 44 12.5 

Massachusetts .......................................................................... 12 0 0 40 0 0 

Michigan .................................................................................... 1,299 19 1.5 3,624 273 7.5 

Minnesota .................................................................................. 1,218 1 0.1 3,417 113 3.3 

Mississippi ................................................................................. 982 70 7.1 3,544 515 14.5 

Missouri ..................................................................................... 823 133 16.2 3,959 639 16.1 

Montana .................................................................................... 356 5 1.5 996 125 12.6 

Nebraska ................................................................................... 630 13 2.1 2,380 129 5.4 

Nevada ...................................................................................... 61 0 0 189 23 12.1 

New Hampshire ......................................................................... 349 8 2.4 1,206 132 10.9 

New Jersey ............................................................................... 0 0 ........................ 0 0 ........................

New Mexico ............................................................................... 256 7 2.5 796 93 11.7 

New York ................................................................................... 827 37 4.5 2,609 824 31.6 

North Carolina ........................................................................... 800 92 11.5 2,945 562 19.1 

North Dakota ............................................................................. 386 6 1.7 1,331 53 4 

Ohio ........................................................................................... 1,681 109 6.5 5,264 1,395 26.5 

Oklahoma .................................................................................. 437 94 21.4 3,040 196 6.4 

Oregon ...................................................................................... 158 2 1.1 528 0 0 

Pennsylvania ............................................................................. 1,026 50 4.9 3,152 757 24 


lotter on DSK11XQN23PROD with PROPOSALS2
Federal Register / Vol. 88, No. 171 / Wednesday, September 6, 2023 / Proposed Rules 61413 

TABLE 24—CURRENT AND ADDITIONAL FULL-TIME RNS AND NAS NEEDED PER STATE TO MEET 0.55 RN AND 2.45 NA 

HPRD STAFFING REQUIREMENT FOR RURAL LTC FACILITIES—Continued 

State Existing fulltime RNs 

Additional RNs 

needed 

% Increase in 

RNs needed 

Existing fulltime NAs Additional NAs 

needed 

% Increase in 

NAs needed 

Puerto Rico ............................................................................... 0 0 ........................ 0 0 ........................

Rhode Island ............................................................................. 0 0 ........................ 0 0 ........................

South Carolina .......................................................................... 279 62 22.4 1,121 250 22.3 

South Dakota ............................................................................ 488 2 0.5 1,382 146 10.6 

Tennessee ................................................................................. 683 78 11.4 2,515 603 24 

Texas ......................................................................................... 1,138 311 27.3 6,143 1,763 28.7 

Utah ........................................................................................... 122 0 0 269 30 11.3 

Vermont ..................................................................................... 250 2 0.8 734 90 12.3 

Virginia ...................................................................................... 574 99 17.3 1,990 651 32.7 

Washington ............................................................................... 193 5 2.5 535 84 15.6 

West Virginia ............................................................................. 399 32 8 1,464 223 15.2 

Wisconsin .................................................................................. 1,142 4 0.3 2,835 335 11.8 

Wyoming ................................................................................... 245 0 0 626 64 10.2 

United States ..................................................................... 26,708 2,144 8.0 95,485 15,028 15.7 

We then assessed the financial cost 

for facilities to implement the proposed 

0.55 RN and 2.45 NA HPRD minimum 

staffing requirement. To estimate the 

yearly cost per State, we used the 

formulas described in section VI.C.1.(a) 

to first estimate each facility’s yearly 

cost to meet the requirement. We also 

assumed that LTC facilities exceeding 

the minimum requirements for either 

RNs and/or NAs would not reduce staff 

to the minimum required level or lay off 

other staff to reduce costs. We then 

calculated the average cost per resident 

day by summing the total cost of 

meeting the requirement for all facilities 

in the State and dividing it by the total 

number of resident days for all facilities 

needing additional RNs or NAs. We 

estimated the average cost per resident 

day only for facilities needing staff to 

provide a more complete picture of the 

burden that the rule would impose on 

these facilities. 

Table 25 provides the yearly 

Statewide cost to implement the 

requirement, as well as the average cost 

per resident day for facilities in rural 

and urban areas that will need to hire 

staff to meet the requirement. Facilities 

in Illinois that were not meeting the 

minimum staffing standard would need 

to spend the most with an average cost 

of $20.41 per resident day. The highest 

overall cost occurs in New York where 

facilities would need to collectively 

spend nearly $409 million to meet the 

minimum staffing requirement. The cost 

also varied across urban and rural areas. 

In Illinois, LTC facilities in urban areas 

that need staff would need to spend an 

average of $21.70 per resident day to 

meet the requirement, while in Florida, 

they would need to spend less than 

$5.25 per resident day. Virginia had the 

highest average cost for rural LTC 

facilities at $17.63 per resident day. 

TABLE 25—LTC FACILITIES IN EACH STATE NEEDING RNS AND/OR NAS AND AVERAGE COST PER RESIDENT DAY BY

RURAL AND URBAN LOCATION

State 

Yearly statewide cost 

($ million) 

Average cost 

per 

resident day 

(statewide) 

Urban LTC 

facilities 

needing RNs 

and/or NAs 

Average cost 

per 

resident day 

(urban areas) 

Rural LTC 

facilities 

needing RNs 

and/or NAs 

Average cost 

per 

resident day 

(rural areas) 

Alabama .................................................................................... 57.5 $10.03 120 $10.59 57 $8.76 

Alaska ........................................................................................ 0.1 7.50 1 7.50 0 0.00 

Arizona ...................................................................................... 35.8 12.07 99 12.06 8 12.17 

Arkansas ................................................................................... 33.9 7.40 103 7.96 80 6.58 

California ................................................................................... 222.7 9.55 725 9.57 26 8.48 

Colorado .................................................................................... 37.4 10.18 122 10.29 26 9.37 

Connecticut ............................................................................... 63.4 12.04 140 12.25 12 9.14 

Delaware ................................................................................... 12.0 11.18 36 11.18 0 0.00 

District of Columbia ................................................................... 1.9 6.33 7 6.33 0 0.00 

Florida ....................................................................................... 54.3 5.32 271 5.23 22 6.46 

Georgia ...................................................................................... 154.1 16.26 201 17.05 125 14.69 

Hawaii ........................................................................................ 2.6 9.41 5 7.97 3 10.84 

Idaho ......................................................................................... 5.3 6.95 29 7.38 11 5.32 

Illinois ........................................................................................ 353.5 20.41 412 21.70 155 14.49

Indiana ....................................................................................... 150.1 13.95 307 14.66 151 12.06 

Iowa ........................................................................................... 40.8 8.94 97 9.16 174 8.78 

Kansas ...................................................................................... 24.9 8.79 90 10.23 63 5.86 

Kentucky .................................................................................... 67.5 11.11 111 13.21 109 8.72 

Louisiana ................................................................................... 117.9 15.57 175 16.71 70 12.10 

Maine ......................................................................................... 2.4 5.89 12 7.17 4 2.02 

Maryland .................................................................................... 77.5 12.00 168 12.14 10 8.64 

Massachusetts .......................................................................... 125.4 12.58 306 12.58 0 0.00 

Michigan .................................................................................... 128.6 14.78 250 15.77 68 9.49 

Minnesota .................................................................................. 33.6 10.09 109 10.81 49 7.58 

Mississippi ................................................................................. 38.3 9.46 54 10.89 103 8.62 

Missouri ..................................................................................... 117.3 12.75 233 14.21 147 9.61 

Montana .................................................................................... 10.4 13.81 13 14.08 27 13.61 

Nebraska ................................................................................... 13.0 8.54 26 9.77 58 7.61 

Nevada ...................................................................................... 18.3 13.90 34 13.80 4 15.92 

New Hampshire ......................................................................... 18.4 13.58 27 12.88 19 14.60 

New Jersey ............................................................................... 163.2 14.74 285 14.74 0 0.00 

New Mexico ............................................................................... 15.3 10.87 29 11.33 22 9.87 


lotter on DSK11XQN23PROD with PROPOSALS2
61414 Federal Register / Vol. 88, No. 171 / Wednesday, September 6, 2023 / Proposed Rules 

TABLE 25—LTC FACILITIES IN EACH STATE NEEDING RNS AND/OR NAS AND AVERAGE COST PER RESIDENT DAY BY

RURAL AND URBAN LOCATION—Continued 

State 

Yearly statewide cost 

($ million) 

Average cost 

per 

resident day 

(statewide) 

Urban LTC 

facilities 

needing RNs 

and/or NAs 

Average cost 

per 

resident day 

(urban areas) 

Rural LTC 

facilities 

needing RNs 

and/or NAs 

Average cost 

per 

resident day 

(rural areas) 

New York ................................................................................... 408.9 14.66 430 14.56 72 15.63 

North Carolina ........................................................................... 126.9 13.01 256 13.33 87 11.99 

North Dakota ............................................................................. 3.9 10.81 5 7.81 15 11.84 

Ohio ........................................................................................... 287.6 14.68 577 15.19 227 13.06 

Oklahoma .................................................................................. 40.6 9.15 108 10.62 96 7.03 

Oregon ...................................................................................... 2.8 4.91 26 4.75 1 8.28 

Pennsylvania ............................................................................. 297.8 14.96 470 15.19 101 13.56 

Puerto Rico ............................................................................... 0.0 0.00 3 0.00 0 0.00 

Rhode Island ............................................................................. 16.1 9.87 53 9.87 0 0.00 

South Carolina .......................................................................... 59.4 12.63 113 12.40 35 13.39 

South Dakota ............................................................................ 10.4 9.53 21 9.84 43 9.34 

Tennessee ................................................................................. 101.8 13.10 181 13.68 100 11.77 

Texas ......................................................................................... 408.0 15.35 773 15.93 305 13.36 

Utah ........................................................................................... 7.5 6.40 49 6.38 8 6.52 

Vermont ..................................................................................... 6.3 10.75 4 12.28 16 10.28 

Virginia ...................................................................................... 156.1 19.18 180 19.65 63 17.63 

Washington ............................................................................... 23.4 10.27 78 9.40 15 15.54 

West Virginia ............................................................................. 30.1 10.88 59 11.00 44 10.68 

Wisconsin .................................................................................. 40.9 11.15 114 11.79 75 10.06 

Wyoming ................................................................................... 6.2 13.03 6 14.37 13 11.97 

United States ..................................................................... 4,232.6 13.24 7,613 13.69 2,685 11.43 

Table 26 shows the average cost per 

resident day for facilities in each State 

that need additional staff, dividing 

facilities based on their size into three 

groups: less than 50 beds, 50 to 100 

beds, and more than 100 beds. Within 

each group of LTC facilities, the cost 

varied widely by the number of beds 

and State. In Oklahoma, the average cost 

per resident day for facilities that have 

fewer than 50 beds and need additional 

RNs or NAs would be $1.84, while in 

Illinois, the average cost per resident 

day for facilities with more than 100 

beds would be $22.10. 

TABLE 26—NUMBER OF LTC FACILITIES IN EACH STATE NEEDED TO HIRE RNS AND/OR NAS AND AVERAGE COST PER

RESIDENT DAY BY FACILITY SIZE

State 

LTC facilities 

needing RNs 

and/or NA 

Statewide 

hiring cost 

($ million) 

Average cost 

per 

resident day 

(statewide) 

Cost— 

<50 beds 

Cost— 

50 to 100 

beds 

Cost— 

>100 beds 

Alabama .................................................................................... 177 57.5 10.03 $5.60 $8.61 $10.51 

Alaska ........................................................................................ 1 0.1 7.50 ........................ 7.50 ........................

Arizona ...................................................................................... 107 35.8 12.07 11.89 7.44 13.24 

Arkansas ................................................................................... 183 33.9 7.40 ........................ 7.39 7.40 

California ................................................................................... 751 222.7 9.55 5.33 9.16 10.06 

Colorado .................................................................................... 148 37.4 10.18 10.94 9.33 10.65 

Connecticut ............................................................................... 152 63.4 12.04 19.07 10.35 12.34 

Delaware ................................................................................... 36 12.0 11.18 7.15 7.38 11.94 

District of Columbia ................................................................... 7 1.9 6.33 3.88 18.10 4.45 

Florida ....................................................................................... 293 54.3 5.32 7.69 5.67 5.24 

Georgia ...................................................................................... 326 154.1 16.26 10.12 14.71 17.21 

Hawaii ........................................................................................ 8 2.6 9.41 3.82 14.83 8.42 

Idaho ......................................................................................... 40 5.3 6.95 5.52 7.80 6.43 

Illinois ........................................................................................ 567 353.5 20.41 8.51 14.51 22.10 

Indiana ....................................................................................... 458 150.1 13.95 14.24 12.79 14.77

Iowa ........................................................................................... 271 40.8 8.94 8.82 8.71 9.73 

Kansas ...................................................................................... 153 24.9 8.79 8.05 8.08 10.69 

Kentucky .................................................................................... 220 67.5 11.11 9.16 11.17 11.13 

Louisiana ................................................................................... 245 117.9 15.57 4.91 10.11 16.50 

Maine ......................................................................................... 16 2.4 5.89 ........................ 6.38 4.78 

Maryland .................................................................................... 178 77.5 12.00 6.36 9.83 12.44 

Massachusetts .......................................................................... 306 125.4 12.58 11.71 11.40 12.83 

Michigan .................................................................................... 318 128.6 14.78 12.36 12.49 15.97 

Minnesota .................................................................................. 158 33.6 10.09 10.30 10.13 9.96 

Mississippi ................................................................................. 157 38.3 9.46 12.76 7.93 10.45 

Missouri ..................................................................................... 380 117.3 12.75 6.62 9.44 14.63 

Montana .................................................................................... 40 10.4 13.81 16.03 16.75 10.77 

Nebraska ................................................................................... 84 13.0 8.54 8.13 7.37 10.67 

Nevada ...................................................................................... 38 18.3 13.90 6.79 9.47 15.14 

New Hampshire ......................................................................... 46 18.4 13.58 4.31 13.58 13.86 

New Jersey ............................................................................... 285 163.2 14.74 10.34 11.22 15.00 

New Mexico ............................................................................... 51 15.3 10.87 10.24 10.86 10.90 

New York ................................................................................... 502 408.9 14.66 9.47 17.38 14.48 

North Carolina ........................................................................... 343 126.9 13.01 11.27 11.71 13.77 

North Dakota ............................................................................. 20 3.9 10.81 9.93 5.47 15.42 

Ohio ........................................................................................... 804 287.6 14.68 11.28 13.76 16.15 

Oklahoma .................................................................................. 204 40.6 9.15 1.84 5.51 11.08 


lotter on DSK11XQN23PROD with PROPOSALS2
Federal Register / Vol. 88, No. 171 / Wednesday, September 6, 2023 / Proposed Rules 61415 

TABLE 26—NUMBER OF LTC FACILITIES IN EACH STATE NEEDED TO HIRE RNS AND/OR NAS AND AVERAGE COST PER

RESIDENT DAY BY FACILITY SIZE—Continued 

State 

LTC facilities 

needing RNs 

and/or NA 

Statewide 

hiring cost 

($ million) 

Average cost 

per 

resident day 

(statewide) 

Cost— 

<50 beds 

Cost— 

50 to 100 

beds 

Cost— 

>100 beds 

Oregon ...................................................................................... 27 2.8 4.91 8.60 3.79 5.94 

Pennsylvania ............................................................................. 571 297.8 14.96 12.90 12.73 15.45 

Puerto Rico ............................................................................... 3 ........................ ........................ ........................ ........................ ........................

Rhode Island ............................................................................. 53 16.1 9.87 9.19 9.16 10.21 

South Carolina .......................................................................... 148 59.4 12.63 8.79 12.48 12.82 

South Dakota ............................................................................ 64 10.4 9.53 9.14 9.37 10.87 

Tennessee ................................................................................. 281 101.8 13.10 7.40 11.86 13.66 

Texas ......................................................................................... 1,078 408.0 15.35 10.03 12.69 16.39 

Utah ........................................................................................... 57 7.5 6.40 9.69 6.84 5.62 

Vermont ..................................................................................... 20 6.3 10.75 5.46 15.05 9.59 

Virginia ...................................................................................... 243 156.1 19.18 5.92 16.13 20.25 

Washington ............................................................................... 93 23.4 10.27 10.68 8.44 11.48 

West Virginia ............................................................................. 103 30.1 10.88 9.03 9.86 11.90 

Wisconsin .................................................................................. 189 40.9 11.15 7.93 10.40 12.47 

Wyoming ................................................................................... 19 6.2 13.03 ........................ 8.27 14.84 

United States ..................................................................... 11,022 4,232.6 13.24 9.25 14.25 11.37 

In Table 27, we calculated the average 

cost by State for facilities needing staff 

to meet the minimum staffing 

requirement based on whether the 

facility accepted patients with 

Medicare, Medicaid, or both Medicare 

and Medicaid. The highest per resident 

day cost would be for a single Medicaidonly facility in North Dakota that would 

need to spend an average of $31.33 per 

resident day to meet the staffing 

requirement. The lowest per resident 

day cost for facilities needing staff 

would be for two Medicare-only 

facilities in West Virginia that would 

need to spend $0.59 per resident day to 

meet the requirement. 

TABLE 27—NUMBER OF LTC FACILITIES IN STATE NEEDING TO HIRE RNS AND/OR NAS AND AVERAGE COST PER

RESIDENT DAY BY MEDICARE, MEDICAID AND DUAL ACCEPTANCE STATUS

State Medicare only 

facilities 

Medicare only 

facilities cost 

per resident 

day 

Medicaid only 

facilities 

Medicaid only 

facilities cost 

per resident 

day 

Medicare and 

Medicaid 

facilities 

Medicare and 

Medicaid 

facilities cost 

per resident 

day 

Alabama .................................................................................... 4 $5.87 1 $12.92 171 $10.06 

Alaska ........................................................................................ 0 0.00 0 0.00 1 7.50 

Arizona ...................................................................................... 13 7.84 0 0.00 92 12.54 

Arkansas ................................................................................... 0 0.00 2 2.18 180 7.50 

California ................................................................................... 7 3.51 19 26.77 722 9.02 

Colorado .................................................................................... 9 5.85 3 26.07 135 10.15 

Connecticut ............................................................................... 0 0.00 0 0.00 151 12.02 

Delaware ................................................................................... 3 6.47 2 10.37 31 11.36 

District of Columbia ................................................................... 0 0.00 0 0.00 7 6.33 

Florida ....................................................................................... 6 9.96 0 0.00 285 5.31 

Georgia ...................................................................................... 4 5.94 0 0.00 322 16.36 

Hawaii ........................................................................................ 0 0.00 0 0.00 8 9.41 

Idaho ......................................................................................... 0 0.00 0 0.00 40 6.95 

Illinois ........................................................................................ 9 5.58 14 37.51 542 20.11 

Indiana ....................................................................................... 7 17.82 5 11.21 444 13.96 

Iowa ........................................................................................... 2 3.09 5 11.49 261 8.93 

Kansas ...................................................................................... 1 12.98 9 20.62 142 8.31 

Kentucky .................................................................................... 5 9.72 0 0.00 213 11.13 

Louisiana ................................................................................... 6 4.27 0 0.00 232 15.30 

Maine ......................................................................................... 0 0.00 0 0.00 16 5.89 

Maryland .................................................................................... 2 10.02 0 0.00 175 12.05 

Massachusetts .......................................................................... 4 14.14 0 0.00 296 12.58 

Michigan .................................................................................... 1 6.28 1 2.71 314 14.72 

Minnesota .................................................................................. 4 5.84 6 27.71 146 9.19 

Mississippi ................................................................................. 3 19.62 12 9.42 142 9.41 

Missouri ..................................................................................... 5 9.63 6 15.99 368 12.74 

Montana .................................................................................... 0 0.00 0 0.00 40 13.81 

Nebraska ................................................................................... 0 0.00 3 7.04 77 8.59 

Nevada ...................................................................................... 3 6.74 1 24.55 34 13.70 

New Hampshire ......................................................................... 0 0.00 1 6.60 45 13.78 

New Jersey ............................................................................... 5 8.83 0 0.00 278 14.66 

New Mexico ............................................................................... 0 0.00 1 8.08 50 10.89 

New York ................................................................................... 0 0.00 0 0.00 500 14.69 

North Carolina ........................................................................... 7 11.76 1 11.94 332 13.05 

North Dakota ............................................................................. 1 31.33 0 0.00 18 10.98 

Ohio ........................................................................................... 5 8.84 0 0.00 792 14.70 

Oklahoma .................................................................................. 2 6.39 2 6.86 200 9.20 

Oregon ...................................................................................... 0 0.00 2 7.52 23 4.60 

Pennsylvania ............................................................................. 33 9.70 1 3.98 535 15.12 

Puerto Rico ............................................................................... 3 0.00 0 0.00 0 0.00 


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61416 Federal Register / Vol. 88, No. 171 / Wednesday, September 6, 2023 / Proposed Rules 

180Cai, S., Yan, D., & Intrator, O. (2021). COVID– 

19 cases and death in nursing homes: The role of 

racial and ethnic composition of facilities and their 

communities. Journal of the American Medical 

Directors Association, 22(7), 1345–1351. 

181Harris, J.A., Engberg, J., & Castle, N.G. (2020). 

Organizational and geographic nursing home 

characteristics associated with increasing 

prevalence of resident obesity in the United States. 

Journal of Applied Gerontology, 39(9), 991–999. 

https://doi.org/10.1177/07 464819843045 https://

doi.org/10.1177/07 464819843045 https://doi.org/

10.1177/07 464819843045 https://doi.org/10.1177/ 

07 464819843045. 

182Min, A., & Hong, H.C. (2019). Effect of nurse 

staffing on rehospitalizations and emergency 

department visits among short-stay nursing home 

residents: A cross-sectional study using the US 

Nursing Home Compare database. Geriatric 

Nursing, 40(2), 160–165. https://doi.org/10.1016/ 

j.ghttps://doi.org/10.1016/ 

j.gerinurse.2018.09.010https://doi.org/10.1016/ 

j.ghttps://doi.org/10.1016/j.gerinurse.2018.09.010. 

183 In the study, Appendix E, Section E.1.1 

provides details on the criteria used for the acuity 

adjustment. 

184Abt Associates. (2022). Nursing Home Staffing 

Study Comprehensive report. Page 110. Report 

prepared for the Centers for Medicare & Medicaid 

Services. https://edit.cms.gov/files/document/ 

nursing-home-staffing-study-final-report-appendixjune-2023.pdf. 

TABLE 27—NUMBER OF LTC FACILITIES IN STATE NEEDING TO HIRE RNS AND/OR NAS AND AVERAGE COST PER

RESIDENT DAY BY MEDICARE, MEDICAID AND DUAL ACCEPTANCE STATUS—Continued 

State Medicare only 

facilities 

Medicare only 

facilities cost 

per resident 

day 

Medicaid only 

facilities 

Medicaid only 

facilities cost 

per resident 

day 

Medicare and 

Medicaid 

facilities 

Medicare and 

Medicaid 

facilities cost 

per resident 

day 

Rhode Island ............................................................................. 0 0.00 0 0.00 53 9.87 

South Carolina .......................................................................... 10 6.87 0 0.00 137 12.82 

South Dakota ............................................................................ 0 0.00 6 5.67 57 9.90 

Tennessee ................................................................................. 18 9.05 4 8.30 259 13.34

Texas ......................................................................................... 23 8.53 6 10.40 1,041 15.51

Utah ........................................................................................... 4 9.15 4 12.85 49 6.00

Vermont ..................................................................................... 0 0.00 0 0.00 20 10.75

Virginia ...................................................................................... 9 3.26 5 15.09 227 19.55

Washington ............................................................................... 0 0.00 0 0.00 93 10.27

West Virginia ............................................................................. 2 0.59 1 8.01 98 10.81 

Wisconsin .................................................................................. 2 1.40 1 5.13 184 11.24

Wyoming ................................................................................... 0 0.00 0 0.00 19 13.03

United States ..................................................................... 222 8.39 124 19.33 10,597 13.96 

b. Benefits of LTC Minimum Staff

Requirement

Literature evidence suggests that 

higher staffing is associated with better 

quality of patient care and patient 

health outcomes.180 181 182 While many 

of these benefits are difficult to quantify, 

research suggests a positive correlation 

between higher RN HPRD and more 

community discharges, as well as fewer 

hospitalizations and emergency 

department visits that result in 

significant savings for Medicare. The 

strongest comes from the 2022 Nursing 

Home Staffing Study that analyzes the 

Medicare savings that are likely to result 

from different case-mix adjusted RN 

hours per resident day (HPRD) 

requirements. 

The study first used the PBJ system, 

which contains data on daily hours 

worked by RNs, and data from the 

Minimum Data Set (MDS) on resident 

acuity and the number of residents in 

the facility, to calculate the acuityadjusted RN HPRD for 14,140 LTC 

facilities based on data from 2022 Q2.183

We would note, as discussed above, that 

while the benefits described in this 

section were calculated on the basis of 

acuity-adjusted data, the minimum 

staffing requirements being proposed in 

this rule will be applied independent of 

an individual facility’s case-mix. We 

understand that this may impact the 

comparability of the benefits described 

in this section to those which may occur 

if these requirements are finalized, but 

we also believe that the acuity adjusted 

data more accurately reflect that which 

is publicly reported through Care 

Compare and the PBJ System. Registered 

nurses included RNs, RNs with 

administrative duties, and RN directors 

of nursing. It then used Nurse Home 

Compare Data from 2021Q2 to 2022Q1 

to examine the impact of different RN 

staffing levels on five claims-based 

measures: short-stay hospital 

readmission, short-stay emergency 

department (ED) visits, long-stay 

hospitalizations per 1,000 long-stay 

resident days, long-stay ED visits per 

1,000 long-stay resident days, and the 

rate of successful return to home or 

community. More specifically, the study 

ran a multivariate regression model that 

used the 1st and 2nd RN staffing decile 

as the reference group and included the 

3rd through the 10th deciles of RN 

staffing as covariates in the model. The 

model also includes several additional 

covariates that take into account LTC 

facility specific characteristics that 

include: (1) facility size (number of 

certified beds), (2) ownership type (forprofit, non-profit or government 

owned), (3) whether the facility is 

located in a rural area, (4) the facility’s 

Medicaid population quartile, (5) 

whether the facility is hospital-based, 

(6) the facility’s status in the Special

Focus Facility Program, and (7) whether

the facility is part of a continuing care

retirement community. They then used

the model coefficients to identify the

mean outcomes that were associated

with each staffing level above the 1st

and 2nd RN staffing deciles.

After identifying the mean outcome 

rate for each of the five measures that 

was associated with each staffing level, 

they compared it to the adjusted mean 

outcome rate for each facility to the rate 

the facility would have if it met the 

minimum required RN staffing level. 

For those facilities above the minimum 

RN staffing level, they assumed that 

they would maintain their current RN 

staffing level. Based on the facility’s 

number of short-stay residents, as well 

as long-stay resident days, they then 

estimated the total savings at the facility 

level. To measure costs savings for 

Medicare, the used an average estimated 

cost of $20,400 per hospitalization, 

$2,500 per ED visit, and for community 

and home discharge, the reduction in 

the number of Medicare-covered SNF 

days multiplied by the average daily 

payment amount. Using these criteria, 

the study estimates that a minimum RN 

requirement of between 0.52 and 0.60 

HPRD would result in $318,259,715 in 

annual Medicare savings.184

Given that our proposed RN HPRD 

level is 0.55 we consider this amount to 

be our best estimate of the rule’s 

financial benefits. There are also likely 

to be cost savings for Medicaid due to 

fewer hospitalizations and emergency 

department visits, although the 2022 


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185Thomas, Kali S., Kathryn Hyer, Ross Andel, 

and Robert Weech-Maldonado. The Unintended 

Consequences of Staffing Mandates in Florida 

Nursing Homes: Impacts on Indirect-Care Staff, 

2010, Medicare Care Research and Review, Volume 

67, Issue 5, Pages 555–573. 

186Bowblis, John R., and Kathryn Hyer. Nursing 

Home Staffing Requirements and Input 

Substitution: Effects on Housekeeping, Food 

Service, and Activities Staff, 2013, Health Services 

Research, Volume 48, Issue 4, Pages: 1539–1550. 

187Chen, Min M., and David C. Grabowski. 

Intended and Unintended Consequences of 

Minimum Staffing Standards for Nursing Homes, 

2015, Volume 24, Pages 822–839. 

Nursing Home Staffing Study did not 

quantify them. Higher RN and NA 

staffing levels may also lead to lower 

employee burnout and turnover, 

reducing LTC facilities’ costs to recruit 

new staff and lowering dependence on 

temporary employees, who often 

command higher hourly rates. 

Additionally, while the savings estimate 

above reflects an acuity-adjusted 

standard, given variability in acuity 

across facilities, we believe that these 

savings estimates provide guidance on 

the potential impact of applying the 

minimum staffing requirements 

independent of a facility’s case-mix. We 

invite comments on this assumption 

and to what extent the benefits 

described in this section should be 

calculated using unadjusted data from 

PBJ and Care Compare. 

Table 28 provides the estimated 

quantifiable benefits annually and over 

10 years. Since the 0.55 RN HPRD 

requirement will not go into effect until 

Year 3, we estimate no reduction in 

Emergency Department visits and 

hospitalizations, as well as increase in 

discharges to home or the community 

for the first 2 years. Over 10 years, we 

estimate a total of approximately $2.55 

billion in Medicare cost savings. We are 

soliciting comments on additional 

benefits from increased RN and NA 

staffing and note that the table below 

does not reflect the unquantifiable 

benefits of this rule. 

TABLE 28—MINIMUM STAFFING REQUIREMENT AND MEDICARE COST SAVINGS

Year Medicare cost 

savings 

1 ..................................................................................................................................................................................................... $0 

2 ..................................................................................................................................................................................................... 0 

3 ..................................................................................................................................................................................................... 318,259,715 

4 ..................................................................................................................................................................................................... 318,259,715 

5 ..................................................................................................................................................................................................... 318,259,715 

6 ..................................................................................................................................................................................................... 318,259,715 

7 ..................................................................................................................................................................................................... 318,259,715 

8 ..................................................................................................................................................................................................... 318,259,715 

9 ..................................................................................................................................................................................................... 318,259,715 

10 ................................................................................................................................................................................................... 318,259,715 

Total 10 Year Savings ............................................................................................................................................................ 2,546,077,720 

Sources of uncertainty about the 

benefits of the 24/7 RN and 0.55 RN and 

2.45 NA HPRD requirement parallel the 

cost uncertainty discussed earlier but 

with some differences: 

The benefits estimate assumed that 

LTC facilities needing RNs and/or NAs 

to meet these requirements will hire the 

necessary staff. It does not, however, 

take into account how changes in the 

number of hours per resident day of 

other direct care or support staff might 

affect the impact that increasing the RN 

HPRD will have on Medicare cost 

savings. Some research, however, has 

found that when States implemented 

minimum hour per day requirements for 

direct care staff (RNs, LPNs, and NAs), 

LTC facilities responded by reducing 

indirect care staff, such as 

housekeeping, food service, and 

activities staff. 185 186 If LTC facilities 

respond to the newly proposed 24/7 RN 

and 0.55 and 2.45 NA requirement in 

similar ways, then benefits of the 

requirements would be lower than what 

is presented above (see earlier 

discussion about appropriate accounting 

depending on the consistency between 

benefit and cost analytic approaches). 

The benefits estimate assumed that 

LTC facilities that exceed the 24/7 RN 

and 0.55 RN and 2.45 NA HPRD 

requirements would maintain RN and 

NA staffing at their current levels. 

Research examining how LTC facilities 

have responded to State level staffing 

mandates provides mixed evidence for 

this assumption, with some research 

finding no evidence that LTC facilities 

exceeding minimum requirements 

reduce staffing, while other research 

suggests that they do.187 If LTC facilities 

reduced RN and NA staffing levels to a 

level that is closer to the minimum 

requirement, then benefits would be 

lower than what is estimated above. 

The benefits estimate assumed that no 

LTC facilities would obtain exemptions 

from the 0.55 RN and 2.45 NA HPRD 

requirements, although some facilities 

could obtain such an exemption. Our 

analysis suggests that, using the criteria 

of being located in an area with a 

medium staffing shortage or being 

located 20 miles from the nearest LTC 

facility, up to 24 percent of LTC 

facilities would meet the initial criteria 

for an exemption from the 2.45 NA 

HPRD requirement while 28 percent 

would be eligible for an exemption from 

the 0.55 RN HPRD requirement. 

Depending on the number of facilities 

that obtain an exemption, the total 

benefits of the rule could be lower than 

what is presented above. 

States could vary in how they respond 

to the increased staffing requirement, 

including whether they pay at least 

some of the additional nursing staffing 

costs with Medicaid funds. Benefits 

consequences are contingent upon such 

choices. For example, if overall 

Medicaid spending does not increase, 

but funds are shifted from other uses to 

increased LTC facility staffing, there 

would be negative health benefits for 

the patients experiencing reduced 

Medicaid coverage. 

c. Transfers Associated With the 24/7 

RN and 0.55 RN and 2.45 NA HPRD 

Minimum Staffing Requirements 

We do not estimate transfers 

associated with the 24/7 RN and 0.55 

RN and 2.45 NA HPRD minimum 

staffing portion of this rule since there 

are no requirements that Medicare, 

Medicaid and other non-Medicare/ 

Medicaid payors increase payment rates 

in response to these requirements. In 

Tables 21 and 22, however, we do 

provide a breakdown of how much of 

the estimated cost from the proposed 

rule is due to LTC residents whose stay 

is covered by each payor type 


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61418 Federal Register / Vol. 88, No. 171 / Wednesday, September 6, 2023 / Proposed Rules 

(Medicare, Medicaid, and other nonMedicare/Medicaid payors). 

(5) Medicaid Institutional Payment 

Transparency Reporting Provision 

Impacts 

Under our authority at sections 

1902(a)(6) and (a)(30) of the Act with 

regard to fee-for-service delivery 

systems, and sections 1902(a)(4) and 

1932(c) of the Act with regard to 

managed care, we are proposing new 

reporting requirements at §§ 442.43(b) 

and 442.43(c) for States to report 

annually, by facility and by delivery 

system, on the percent of payments for 

Medicaid-covered services delivered by 

nursing facilities and ICF/IIDs that are 

spent on compensation for direct care 

workers and support staff. 

Under this proposal, States would be 

required to report annually to us on the 

percent of payments for nursing facility 

and ICF/IID services that are spent on 

compensation for direct care workers 

and support staff. We are considering 

additional requirements that States 

report on median hourly wages for 

direct care workers and support staff in 

these facilities, and the State’s FFS per 

diem rates for nursing facility and ICF/ 

IID services. (The estimated costs of 

these additional proposals have been 

factored into our overall cost estimates.) 

We are proposing that States would be 

required to post all reported data on a 

State-maintained website, which States 

would review quarterly to ensure the 

information remains accurate and up-todate. We believe that gathering and 

sharing data about the amount of 

Medicaid dollars that are going to the 

compensation of workers is a critical 

step in the larger effort to understand 

the ways we can enact policies that 

support the institutional care workforce 

and thereby help advance access to high 

quality care for Medicaid beneficiaries. 

a. Costs of Medicaid Institutional 

Payment Transparency Reporting 

As outlined in the Collection of 

Information (section IV. of this proposed 

rule), we estimate implementation costs 

to States of $622,551 to come into 

compliance with the reporting 

requirements proposed at §§ 442.43(b) 

and 442.43(c); we estimate an annual 

total cost of $97,470 once the reporting 

requirement went into effect. 

Additionally, under our proposal at 

§ 442.43(d), States would be required to 

make this information available on a 

public website; as outlined in the 

Collection of Information (section IV. of 

this proposed rule) we estimate an 

implementation cost to States of 

$239,333 and an ongoing annual cost of 

$295,527 once reporting starts. The total 

State costs for both the proposed 

reporting and website requirements are 

thus estimated at $861,884 for 

implementation costs ($622,551 + 

$239,333) and $392,997 ongoing annual 

costs once the reporting starts ($97,470 

+ $295,527). 

However, as discussed in the 

Collection of Information (section IV. of 

this proposed rule) the Federal 

Government, through Federal Financial 

Participation, has a share in State 

Medicaid expenditures. For the 

purposes of this proposal, we have 

estimated that the Federal share of 

States’ Medicaid expenditures is 50 

percent. This means that the States and 

the Federal Government will each have 

a 50 percent share in the costs estimated 

in the prior paragraph. Therefore, we 

estimate that the States’ and Federal 

Government’s shares of the 

implementation costs for the proposals 

would be $430,942 ($861,864 × 0.5) and 

ongoing annual costs once the 

requirements took effect of $196,498 

($392,997 × 0.5). 

As discussed in the Collection of 

Information (section IV. of this proposed 

rule) we estimate that the total cost to 

providers to prepare for compliance 

with the reporting requirement 

proposed at § 442.43(b) and (c) would be 

$36,560,002, and an annual total cost to 

providers of $17,912,717. 

We do not estimate a cost to providers 

for the website posting requirement 

proposed at § 442.43(d). We also do not 

anticipate costs to beneficiaries 

associated with either the proposed 

reporting requirement or the proposed 

website posting requirement. 

Table 29 provides a detailed summary 

of the estimated costs of each of the 

provisions for States, the Federal 

Government, and providers. Table 30 

summarizes the estimated costs of the 

provisions in § 442.43 for States, the 

Federal Government, and providers 

(Nursing Care Facilities (NAICS 623110) 

and Residential Intellectual and 

Developmental Disabilities Facilities 

(NAICS 623210)), over 10 years. Aside 

from regulatory review costs (discussed 

in the next section) this comprises the 

entirety of anticipated quantifiable costs 

associated with proposed changes to 

part 442, subpart B. The implementation 

costs associated with the proposed 

reporting and website posting 

requirements are split evenly over the 

years leading up to the proposed 

effective date, which is 4 years from the 

final rule’s publication. For States and 

the Federal Government, this means that 

the implementation costs are 

represented as $107,736 per year for 4 

years ($430,942 estimated 

implementation costs/4 years). For 

providers, the implementation costs are 

represented as $9,140,000 per year for 4 

years ($36,560,002 estimated 

implementation costs/4 years). We also 

anticipate that once the rule goes into 

effect in Year 5, the ongoing annual 

costs will be relatively stable. We have 

shown the recurring annual estimate for 

Years 5–10 in Table 30. The estimates 

below do not account for higher costs 

associated with medical care; the costs 

calculated here are related exclusively 

to reporting and website posting costs. 

Per OMB guidelines, the projected 

estimates for future years are reported in 

real (non-inflation-indexed) dollars. 

As discussed in the Collection of 

Information (section IV. of this proposed 

rule), costs were based on: (1) the 

number of States (including 

Washington, DC and certain territories) 

that currently operate Medicaid 

programs that cover nursing facility or 

ICF/IID services; (2) the number of 

States that deliver long-term services 

and supports through managed care; 

and (3) the total number of freestanding 

Medicaid-certified nursing facility and 

ICF/IID facilities in all States. We do not 

anticipate the number of entities 

changing significantly over the 10 years 

included in the cost calculations. 

TABLE 29—IMPLEMENTATION AND ANNUAL COSTS DETAILED

Cost to 

states 

($) 

Cost to 

federal 

($) 

Costs to 

providers 

($) 

Implementation 

burden 

overall total 

($) 

Ongoing 

annual burden 

overall total 

($) 

Reporting—Implementation ............................................. 311,275 311,275 36,560,002 37,182,552 ............................

Reporting—Recurring annual starting Year 5 ................. 48,735 48,735 17,912,717 ............................ 18,010,187 

Website—Implementation ................................................ 119,667 1196,667 0 239,333 ............................

Website—Recurring annual starting Year 5 .................... 147,763 147,763 0 ............................ 295,526 


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188See, for example, the discussion of low wages 

among direct care workers in Campbell, S., A. Del 

Rio Drake, R. Espinoza, K. Scales. 2021. Caring for 

the future: The power and potential of America’s 

direct care workforce. Bronx, NY: PHI http://

phinational.org/wp-content/uploads/2021/01/

Caring-for-the-Future-2021-PHI.pdf. 

189See, for example, the discussion of the 

relationship between staff turnover and nursing 

home quality in Zheng Q, Williams CS, Shulman 

ET, White AJ. Association between staff turnover 

and nursing home quality—evidence from payrollbased journal data. J Am Geriatr Soc. 2022 

Sep;70(9):2508–2516. doi: 10.1111/jgs.17843. Epub 

2022 May 7. PMID: 35524769. 

190Ochieng, N., Chidambaram, P., Musumeci, M. 

Nursing Facility Staffing Shortages During the 

COVID–19 Pandemic. Apr 04, 2022. Kaiser Family 

Foundation. Accessed at https://www.kff.org/

coronavirus-covid-19/issue-brief/nursing-facilitystaffing-shortages-during-the-covid-19-pandemic/. 

191Harrington, C., Carrillo, H., Garfield, R., 

Squires, E. Nursing Facilities, Staffing, Residents 

and Facility Deficiencies, 2009 Through 2016. Apr 

03, 2018. Kaiser Family Foundation. Accessed at 

https://www.kff.org/report-section/nursingfacilities-staffing-residents-and-facility-deficiencies2009-through-2016-staffing-levels/. 

192Min A, Hong HC. Effect of nurse staffing on 

rehospitalizations and emergency department visits 

among short-stay nursing home residents: A Crosssectional study using the US Nursing Home 

Compare database. Geriatr Nurs. 2019 MarApr;40(2):160–165. doi: 10.1016/ 

j.gerinurse.2018.09.010. Epub 2018 Oct 4. PMID: 

30292528. 

TABLE 29—IMPLEMENTATION AND ANNUAL COSTS DETAILED—Continued 

Cost to 

states 

($) 

Cost to 

federal 

($) 

Costs to 

providers 

($) 

Implementation 

burden 

overall total 

($) 

Ongoing 

annual burden 

overall total 

($) 

Total .......................................................................... 627,440 627,440 54,472,719 37,421,886 18,305,713

TABLE 30—PROJECTED DISTRIBUTION OF COSTS FOR PROPOSED UPDATES TO 42 CFR 442 SUBPART B 

Year State costs Federal 

costs Provider costs 

Total costs 

associated 

with 

§ 442.43 

1 ............................................................................................................................... 107,736 107,736 9,140,000 9,355,472 

2 ............................................................................................................................... 107,736 107,736 9,140,000 9,355,472 

3 ............................................................................................................................... 107,736 107,736 9,140,000 9,355,472 

4 ............................................................................................................................... 107,736 107,736 9,140,000 9,355,472 

5 ............................................................................................................................... 196,498 196,498 17,912,717 18,305,713 

6 ............................................................................................................................... 196,498 196,498 17,912,717 18,305,713 

7 ............................................................................................................................... 196,498 196,498 17,912,717 18,305,713 

8 ............................................................................................................................... 196,498 196,498 17,912,717 18,305,713 

9 ............................................................................................................................... 196,498 196,498 17,912,717 18,305,713 

10 ............................................................................................................................. 196,498 196,498 17,912,717 18,305,713 

10 Year Total Cost ........................................................................................... 1,609,930 1,609,930 144,036,304 147,256,164 

b. Benefits of Medicaid Institutional 

Payment Transparency Reporting 

Our proposal is intended to support 

the sufficiency of the direct care and 

support staff workforce through public 

reporting of the direct payments to these 

workers. The immediate benefits (and 

the intermediate costs in the cause-andeffect chain connecting reporting to 

long-term benefits) are difficult to 

quantify. However, we believe that these 

provisions, if finalized, will pave the 

way for long-term benefits to Medicaid 

beneficiaries and help hold States 

accountable for ensuring that Medicaid 

payments are sufficient to enlist enough 

workers so that high quality LTSS are 

available to the beneficiaries who want 

and require such care. 

We believe that compensation levels 

are a factor in the creation of a stable 

workforce, and that a stable workforce 

will result in better qualified employees, 

lower turnover, and a higher quality of 

care.188 189 If individuals are attracted to 

the institutional LTSS workforce and 

incentivized to remain employed in it, 

the workforce is more likely to be 

comprised of workers with the training, 

expertise, and experience to meet the 

diverse and often complex needs of 

individuals with disabilities and older 

adults residing in institutions. As 

discussed above, a consistent, adequate 

direct care workforce can reduce 

reliance on overtime and costlier 

temporary staff and reduce the 

incidence of emergency department 

visits and hospitalizations.190 191 192

There are many factors that contribute 

to understaffing in institutional settings. 

We are constantly seeking opportunities 

to address these challenges through 

guidance, policies, and rulemaking. 

These provisions in this proposed rule 

are intended to promote transparency 

around compensation for direct care 

workers and support staff. We believe 

that gathering and sharing data about 

the amount of Medicaid payments going 

to the compensation of workers is a 

critical step in the larger effort to 

understand the ways we can enact 

future policies that support the 

institutional care workforce. 

c. Transfers Associated With Medicaid 

Institutional Payment Transparency 

Reporting 

We do not estimate transfers 

associated with these proposed 

provisions. 

D. Alternative Direct Care Staff HPRD 

Requirement Considered 

As detailed in this proposed rule, 

despite the existing requirements and 

the efforts to improve safety, as well as 

residents’ quality of care and quality of 

life through the revisions in the 2016 

final rule, understaffing in LTC facilities 

continues to be a concern. We believe 

the changes we have proposed are 

consistent with current standards of 

practice and necessary to increase 

resident safety and quality of care. We 

acknowledge, however, there are 

multiple avenues for establishing a 

minimum nurse staffing requirement 

and solicit comments on alternative 

policy options, including a specific 

comment solicitation in the ‘‘Provisions 

of the Proposed Regulation’’ section. 

In developing the proposed rule, we 

considered varying staffing models that 

are available and different approaches 

we could have adopted for the proposed 

minimum nurse staffing requirement. 

We could have adopted multiple 

different types of combinations of a 


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193Please see Exhibit 4.50. Predicted Medicare 

Savings and Changes in Utilization for Potential 

Minimum RN Staffing Options. 

staffing requirement such as separate 

requirements for RNs, LVNs/LPNs, and 

NAs or defining requirements for 

licensed nurse staffing, that is, 

combining RNs and LVNs/LPNs or 

creating standards for NAs only. 

Alternatively, we could have adopted 

non-nurse staffing requirements such as 

social workers, therapists, feeding 

assistants and other non-nurse staffing 

types in the minimum staffing 

requirement. Alternative minimum 

staffing policy options could also focus 

on the need to increase or decrease the 

number of HPRD or FTEs by nurse staff 

and/or type or on specifying the number 

by shift (including day, evening, night, 

or weekends or over a 24-hour period). 

Ultimately, we chose the 

comprehensive 24/7 RN and 0.55 RN 

and 2.45 NA HPRD requirements in this 

proposed rule to strike a balance 

between ensuring resident health and 

safety, while preserving access to care, 

including discharge to communitybased services. We considered a staffing 

standard that would maintain the 24/7 

and 2.45 NA HPRD requirements but 

would have a lower RN HPRD 

requirement. We found, however, that 

even a small reduction in the RN HPRD 

requirement would lead to a large 

decline in quality of care. For example, 

the 2022 Nursing Home Staffing 

Study 193 found that reducing the casemix adjusted RN HPRD requirement to 

between 0.45 and 0.52 hours per 

resident day would lead the staffing 

standard to have a smaller impact on 

Medicare savings, reduced 

hospitalizations and ED visits, and 

fewer community discharges. More 

specifically, the number of reduced 

hospitalizations would decline from 

10,445 to 5,781, the number of reduced 

ED visits would decline from 7,525 to 

4,466, increased community discharges 

would decline from 5,798 to 3,930, and 

Medicare savings would decline by 

more than $130 million annually. 

We seek comments on choosing a 

lower HPRD minimum staffing 

requirement. In particular, how a lower 

minimum staffing requirement may 

influence quality of care and resident 

safety, as well as access to care. 

We also considered alternative 

minimum staffing requirements at 

higher levels than the one we proposed. 

To illustrate this approach, we 

considered an alternative minimum 

staffing requirement that would retain 

the 24/7 RN requirement but would 

increase the minimum HPRD 

requirement. More specifically, this 

alternative minimum requirement 

would include a minimum staffing level 

of 0.55 RN HPRD, 2.45 NA HPRD, and 

3.48 total nurse staff (RN, LPN/LVN, 

NA) HPRD. It is important to note that 

these estimates do not include the 

exemption criteria, which could 

significantly reduce the rule’s cost. 

To estimate the incremental impact of 

the Minimum Nurse Staffing 

Requirement of 0.55 RN HPRD, 2.45 NA 

HPRD, and 3.48 total nurse staff HPRD, 

we used the same methodology 

described in section VI.C.1 to first 

estimate the cost of facilities meeting 

the 0.55 RN and 2.45 NA hours per 

resident day, minimum staffing 

requirement. After accounting for any 

increase in RN and NA hours per 

resident day needed to meet the 0.55 RN 

and 2.45 NA requirements, we then 

calculated the total number of 

additional hours per resident day of 

nurse care that LTC facilities would 

need to provide to meet the 3.48 HPRD 

total nurse staff requirement. We did 

this calculation by subtracting the total 

nurse staff hours (RN, LVN/LPN, and 

NA) provided from 3.48 using the 

following formula: [3.48¥(RN HPRD 

+LVN/LPN HPRD + NA HPRD)]. For any 

facilities that were below the 3.48 total 

nurse staff requirement, we assumed 

that they would hire NAs to fulfill any 

remaining hours. Using this strategy, we 

estimate that this alternative HPRD 

option would have an annual cost of 

approximately $4.25 billion for all 

facilities. 

This $4.25 billion estimate assumed 

that LTC facilities would respond to the 

minimum staffing requirement by 

increasing their RN and NA staffing 

levels to the level necessary to meet the 

requirements, without reducing other 

staff such as administrative staff. We 

also assumed LTC facilities that were 

above the minimum staffing 

requirements for RNs or total nurse staff 

hours per resident day would not 

decrease their staffing levels to the 

mandated minimum. Finally, we 

assumed that LTC facilities would not 

lay off LVNs/LPNs and replace them 

with NAs, who are less costly. If 

facilities covered under this proposed 

rule reduced other staff not covered by 

the rule, reduced nurse staff levels to 

the mandate minimum, or they obtained 

exemptions from the minimum staffing 

requirements, the requirement’s cost 

and benefits could decline significantly 

relative to what is presented above. 

Non-quantified effects, such as costs 

associated with LTC closure or 

reduction in patient load per facility, 

would also be reduced). 

Table 31 summarizes the 10-year total 

cost for this alternative minimum nurse 

staffing proposal in 2021 US dollars. 

The total cost for this alternative 

proposal included the 24/7 RN 

requirement, the 3.48 HPRD 

requirement, and any associated 

collection of information costs as 

described in section IV. Collection of 

Information Requirement. To account 

for changes in real nurse staff wages 

over time, we assumed that real wages 

would rise at a rate of 2.31 percent 

annually. Since this estimate continued 

to assume that the rule would have 

different phase-in periods for rural and 

urban LTC facilities to meet the 24/7 RN 

(2 years for facilities in urban areas and 

3 years for facilities in rural areas) and 

the 0.55 RN HPRD, 2.45 NA HPRD, and 

3.48 total nurse staff (RN, LPN/LVN, 

NA) HPRD (3 years for facilities in 

urban areas and 5 years for facilities in 

rural areas) requirements, we provided 

separate estimates for facilities located 

in each area. Over a 10-year period, we 

anticipated an average annual cost of 

approximately $4.08 billion. 

TABLE 31—COST FOR ALTERNATIVE MINIMUM NURSE STAFFING REQUIREMENT OF 3.48 TOTAL HOURS PER RESIDENT

DAY

Year 

Collection of 

information 

costs for 24/7 

RN (§ 483.35 

nursing 

services) 

Collection of 

information costs 

for facility 

assessment 

(§ 483.71 

facility 

assessment) 

24/7 RN 

Requirement 

(urban facilities) 

24/7 RN 

Requirement 

(rural facilities) 

0.55 RN, 2.45 NA, 

and 3.48 total 

nurse HPRD 

Requirement 

(urban facilities) 

0.55 RN, 2.45 NA, 

and 3.48 total 

nurse HPRD 

requirement 

(rural facilities) 

Total cost 

1 ................................ $7,461,504 $24,176,448 $0 $0 $0 $0 $31,637,952 

2 ................................ 7,633,865 24,734,924 213,764,107 0 0 0 246,132,896 


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TABLE 31—COST FOR ALTERNATIVE MINIMUM NURSE STAFFING REQUIREMENT OF 3.48 TOTAL HOURS PER RESIDENT

DAY—Continued 

Year 

Collection of 

information 

costs for 24/7 

RN (§ 483.35 

nursing 

services) 

Collection of 

information costs 

for facility 

assessment 

(§ 483.71 

facility 

assessment) 

24/7 RN 

Requirement 

(urban facilities) 

24/7 RN 

Requirement 

(rural facilities) 

0.55 RN, 2.45 NA, 

and 3.48 total 

nurse HPRD 

Requirement 

(urban facilities) 

0.55 RN, 2.45 NA, 

and 3.48 total 

nurse HPRD 

requirement 

(rural facilities) 

Total cost 

3 ................................ 7,810,207 25,306,301 218,702,058 146,603,030 3,675,431,549 0 4,073,853,145 

4 ................................ 7,990,623 25,890,876 223,754,076 149,989,560 3,760,334,018 0 4,167,959,153 

5 ................................ 8,175,206 26,488,955 228,922,795 153,454,319 3,847,197,733 808,635,699 5,072,874,708 

6 ................................ 8,364,053 27,100,850 234,210,912 156,999,114 3,936,068,001 827,315,184 5,190,058,114 

7 ................................ 8,557,263 27,726,880 239,621,184 160,625,793 4,026,991,172 846,426,164 5,309,948,456 

8 ................................ 8,754,936 28,367,371 245,156,433 164,336,249 4,120,014,668 865,978,609 5,432,608,265 

9 ................................ 8,957,175 29,022,657 250,819,547 168,132,416 4,215,187,007 885,982,714 5,558,101,516 

10 .............................. 9,164,086 29,693,081 256,613,478 172,016,275 4,312,557,827 906,448,915 5,686,493,661 

10 Year Total 

Cost ................ 82,868,918 268,508,343 2,111,564,589 1,272,156,756 31,893,781,974 5,140,787,285 40,769,667,866 

As we have previously noted, this 

rule does not require payors to increase 

payment rates to providers to meet the 

expected costs of the minimum staffing 

and 24/7 RN requirements. Below, 

however, we provide estimates of how 

much of facilities’ costs to meet the 

minimum staffing and 24/7 RN 

requirements are due to residents whose 

stays are covered by Medicaid, 

Medicare, and other non-Medicare/ 

Medicaid payors. 

Table 32 lays out the share of the 

facility’s cost to meet the requirement 

that is due to residents utilizing 

Medicaid, with an average annual cost 

of approximately $2.68 billion in 2021 

US dollars over a 10-year period. Table 

33 lays out the share of the facility’s cost 

that is due to residents utilizing 

Medicare and other non-Medicare/ 

Medicaid payors, with an average 

annual cost of approximately $453 

million for Medicare and $884 million 

for other payors in 2021 US dollars over 

a 10-year period. These estimates were 

based on the assumptions listed in 

section VI.C.1.a.(3) of this proposed 

rule. 

We seek comments on choosing a 

higher HPRD minimum staffing 

requirement. In particular, we welcome 

comments regarding how a higher 

minimum staffing requirement may 

influence quality of care and resident 

safety, as well as access to care. 

BILLING CODE 4120–01–P 


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BILLING CODE 4120–01–C 


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2. Medicaid Institutional Payment 

Transparency Reporting 

We considered proposing to require in 

§ 442.43(b) that States report at the 

beneficiary level or other more granular 

levels but did not include such 

requirements because we expected that 

this would increase reporting burden for 

States and providers without giving us 

additional information necessary for 

determining the percent of payments 

that are going to the workforce. 

We also considered whether to allow 

States, at their option, to exclude from 

their reporting to CMS payments to 

providers that have low Medicaid 

revenues or serve a small number of 

Medicaid beneficiaries, based on 

Medicaid revenues for the service, or 

the number of Medicaid beneficiaries 

receiving the service. We considered 

this option as a way to reduce State and 

provider data collection and reporting 

burden based on the experience of 

States that have implemented similar 

reporting requirements. However, we 

are concerned that such an option could 

discourage providers from serving 

Medicaid beneficiaries or increasing the 

number of Medicaid beneficiaries 

served. 

E. Regulatory Review Costs 

1. Regulatory Review Costs of 24/7 RN 

and 0.55 RN and 2.45 NA HPRD 

Minimum Nurse Staffing 

If the 24/7 RN and the Minimum 

Nurse staffing proposals impose 

administrative costs on private entities, 

such as the time needed to read and 

interpret this proposed rule, we should 

estimate the cost associated with 

regulatory review. As discussed in the 

Collection of Information (section III. of 

this proposed rule), 14,688 LTC 

facilities would be impacted by the 

proposed requirements. We assume that 

seventy-five percent (75 percent) of LTC 

facilities will proactively review this 

proposed rule, or 11,016. (We note that 

the FY 2023 SNF PPS proposed rule, 87 

FR 22720, had around 18,000 views, as 

shown at https://

www.federalregister.gov/documents/

2022/04/15/2022-07906/medicareprogram-prospective-payment-systemand-consolidated-billing-for-skillednursing-facilities. Some of these views 

were likely multiple views by the same 

reader.) We acknowledge that this 

assumption may understate or overstate 

the costs of reviewing this rule. It is 

possible that not all of the affected LTC 

facilities will read this proposed rule, or 

that there may be more than one 

individual reviewing the rule for some 

LTC facilities. It is also possible that 

entities other than LTC facilities, such 

as beneficiary advocacy groups, may 

review this rule. We welcome any 

comments on the approach in 

estimating the number of LTC facilities 

which will review this proposed rule. 

We also recognize that different types 

of entities are in many cases affected by 

mutually exclusive sections of some 

proposed rules, or that some entities 

may not find it necessary to fully read 

each rule, and therefore for the purposes 

of our estimate we assume that each 

reviewer will read approximately 50 

percent of the section of the rule 

discussing the 24/7 RN requirement and 

the 0.55 RN and 2.45 NA HPRD 

requirement. 

We seek comments on this 

assumption. 

Using the wage information from the 

Bureau of Labor Statistics, May 2022 

National Occupational Employment and 

Wage Estimates, https://www.bls.gov/ 

oes/current/oes_nat.htm, for medical 

and health service managers (Code 11– 

9111), we estimate that the cost of 

reviewing this rule is $123.06 per hour, 

including overhead and fringe benefits. 

Assuming an average reading speed of 

250 words per minute, and assuming 

that two-thirds (67 percent) of this 

proposed rule pertains to the 24/7 RN 

and 0.55 RN and 2.45 NA HPRD 

requirement, with approximately 40,000 

words (of which we estimate 20,000 

words will be read by reviewers), we 

estimate that it would take 80 minutes 

or 1.33 hours for the staff to review all 

the sections of the proposed rule 

pertaining to the 24/7 RN and 0.55 RN 

and 2.45 NA HPRD requirements. For 

each employee that reviews the rule, the 

estimated cost is $163.67 (1.33 hours × 

$123.06). Therefore, we estimate that 

the total one-time cost of reviewing this 

regulation is $1,802,989 (163.67 × 

11,016). 

2. Regulatory Review Costs of Medicaid 

Institutional Payment Transparency 

Reporting 

As discussed in the Collection of 

Information (section III. of this proposed 

rule), 52 State Medicaid agencies and 

approximately 19,907 nursing facilities 

and ICF/IIDs would be impacted by the 

proposed requirements (totaling 19,959 

interested parties). Due to the 

uncertainty involved with accurately 

quantifying the number of entities that 

will review the rule, we assume that 

seventy-five percent (75 percent) of 

these affected entities will proactively 

review this proposed rule, or 14,969. 

(We note that the FY 2023 SNF PPS 

proposed rule, 87 FR 22720, had around 

18,000 views, as shown at https://

www.federalregister.gov/documents/ 

2022/04/15/2022-07906/medicareprogram-prospective-payment-systemand-consolidated-billing-for-skillednursing-facilities. Some of these views 

were likely multiple views by the same 

reader.) We acknowledge that this 

assumption may understate or overstate 

the costs of reviewing this rule. It is 

possible that not all those affected 

entities will read this proposed rule, or 

that there may be more than one 

individual reviewing the rule for some 

of the affected entities. It is also possible 

that entities other than State Medicaid 

agencies or institutional facilities, such 

as beneficiary advocacy groups, may 

review this rule. We welcome any 

comments on the approach in 

estimating the number of entities which 

will review this proposed rule. We also 

recognize that different types of entities 

are in many cases affected by mutually 

exclusive sections of some proposed 

rules, or that some entities may not find 

it necessary to fully read each rule, and 

therefore for the purposes of our 

estimate we assume that each reviewer 

will read half of the sections of the rule 

discussing Medicaid institutional 

payment adequacy. We seek comments 

on this assumption. 

Using the wage information from the 

Bureau of Labor Statistics, May 2022 

National Occupational Employment and 

Wage Estimates, https://www.bls.gov/ 

oes/current/oes_nat.htm, for medical 

and health service managers (Code 11– 

9111), we estimate that the cost of 

reviewing this rule is $123.06 per hour, 

including overhead and fringe benefits. 

Assuming an average reading speed of 

250 words per minute, and assuming 

that one-third of this rule pertains to 

Medicaid Institutional Payment 

Transparency Reporting, with 

approximately 20,000 words (of which 

we estimate 10,000 words will be read 

by reviewers), we estimate that it would 

take 40 minutes or 0.67 hours for the 

staff to review portions of the sections 

of the proposed rule pertaining to the 

Medicaid Institutional Payment 

Transparency Reporting. For each 

employee that reviews the rule, the 

estimated cost is $82.45 (0.67 hours × 

$123.06). Therefore, we estimate that 

the total one-time cost of reviewing this 

regulation is $1,234,194 ($82.45 × 

14,969). 

Table 34 provides the total estimated 

regulatory review costs for the rule, 

which is $3,037,183. 


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TABLE 34—REGULATORY REVIEW COST

Medicaid institutional payment transparency reporting 

24/7 RN and 0.55 RN 

and 2.45 NA HPRD 

minimum nurse 

staffing 

Total cost 

$1,234,194 ....................................................................................................................................... $1,802,989 $3,037,183 

F. Accounting Statement 

As required by OMB Circular A–4 

(available online at https://

obamawhitehouse.archives.gov/omb/

circulars_a004_a-4/), we have prepared 

an accounting statement in Table 34 

showing classification of the costs and 

benefits associated with the provisions 

of this proposed rule. This includes the 

total cost for the 24/7 RN and the 0.55 

RN and 2.45 NA HPRD requirements as 

provided in Table 20, the total cost for 

the Medicaid Institutional Transparency 

Reporting as provided in Table 30, the 

total cost for the regulatory review as 

provided in Table 34, and Medicare 

savings due to fewer hospitalizations 

and emergency department visits, as 

well as greater return to home and 

community, as provided in Table 28. 

There are $0 in transfer estimates in the 

statement. This statement provides our 

best estimate for the Medicare and 

Medicaid provisions of this rule. 

TABLE 35—ACCOUNTING STATEMENT: 24/7 RN REQUIREMENT, 0.55 RN AND 2.45 NA HPRD REQUIREMENT, AND

MEDICAID INSTITUTIONAL PAYMENT TRANSPARENCY REPORTING REQUIREMENT

Category Estimates 

Units 

Year dollar Discount rate Period covered 

Benefits 

Annualized Monetized ($million/year) ...................................... 236 

247 

2021 

2021 

7% 

3 

2024–2033 

2024–2033 

Costs 

Annualized Monetized ($million/year) ...................................... 3,733 

3,930 

2021 

2021 

7% 

3 

2024–2033 

2024–2033 

G. Regulatory Flexibility Act Analysis 

(RFA) 

The RFA requires agencies to analyze 

options for regulatory relief of small 

entities, if a rule has a significant impact 

on a substantial number of small 

entities. For purposes of the RFA, we 

estimate that almost all Skilled Nursing 

Facilities (NAICS 6231) and Intellectual 

and Developmental Disabilities 

Facilities (NAICS 6232) are small 

entities, as that term is used in the RFA 

(including small businesses, nonprofit 

organizations, and small governmental 

jurisdictions). The great majority of 

hospitals and most other health care 

providers and suppliers are small 

entities, either by being nonprofit 

organizations or by meeting the Small 

Business Administration (SBA) 

definition of a small business (that is, 

having revenues of less than $8.0 

million to $41.5 million in any 1 year). 

We utilized the revenues of 

individual SNF providers (from recent 

Medicare Cost Reports) to classify a 

small business, and not the revenue of 

a larger firm with which they may be 

affiliated. As a result, for the purposes 

of the RFA, we estimate that almost all 

SNFs are small entities as that term is 

used in the RFA, according to the Small 

Business Administration’s latest size 

standards, with total revenues of $34 

million or less in any 1 year. In 

addition, approximately 20 percent of 

SNFs classified as small entities are 

non-profit organizations. Therefore, 

approximately 95 percent of the health 

care industries impacted are considered 

small businesses according to the Small 

Business Administration’s size 

standards with total revenues of $41 

million or less in any 1 year. Individuals 

and States are not included in the 

definition of a small entity. According 

to the 2017 Economic Census, Skilled 

Nursing Facilities (NAICS 6231) and 

Intellectual and Development 

Disabilities Facilities (NAICS 6232) 

together earned approximately $162 

billion annually with Skilled Nursing 

Facilities earning nearly $119 billion 

and Intellectual and Development 

Disabilities Facilities earning 

approximately $44 billion. Overall, the 

cost is estimated to be between 2.30 and 

2.42 percent of revenues. 

TABLE 36—REGULATORY FLEXIBILITY ACT ANALYSIS

Annual revenue 

Estimated average 

annual cost for 

providers with 3% 

discount rate 

Estimated average 

annual cost for 

providers with 7% 

discount rate 

Cost as 

% of 

revenue 

with 3% 

discount 

rate 

Cost as 

% of 

revenue 

with 7% 

discount 

rate 

Skilled Nursing Facilities and Intellectual and 

Developmental Disabilities Facilities ............ $162,451,136,000 $3,733,000,000 $3,930,000,000 2.30 2.42 


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Individuals and States are not 

included in the definition of a small 

entity. This rule will not have a 

significant impact measured change in 

revenue of 3 to 5 percent on a 

substantial number of small businesses 

or other small entities. As its measure of 

significant economic impact on a 

substantial number of small entities, 

HHS uses a change in revenue of more 

than 3 to 5 percent. At this time, we do 

not believe that this threshold will be 

reached by the requirements in this 

proposed rule. Therefore, the Secretary 

has certified that this proposed rule will 

not have a significant economic impact 

on a substantial number of small 

entities. 

In addition, section 1102(b) of the Act 

requires us to prepare a regulatory 

impact analysis if a rule may have a 

significant impact on the operations of 

a substantial number of small rural 

hospitals. This analysis must conform to 

the provisions of section 603 of the 

RFA. For purposes of section 1102(b) of 

the Act, we define a small rural hospital 

as a hospital that is located outside of 

an MSA and has fewer than 100 beds. 

These proposals pertain solely to SNFs 

and NFs. Therefore, the Secretary has 

determined that these proposals will not 

have a significant impact on the 

operations of a substantial number of 

small rural hospitals. 

H. Unfunded Mandates Reform Act 

Analysis 

Section 202 of the Unfunded 

Mandates Reform Act (UMRA) of 1995 

also requires that agencies assess 

anticipated costs and benefits before 

issuing any rule whose mandates 

require spending in any 1 year of $100 

million in 1995 dollars, updated 

annually for inflation. In 2023, that 

threshold is approximately $177 

million. Based on the cost estimates 

discussed in this section, we have 

assessed the various costs and benefits 

of the proposed updates to the 

requirements for participation for LTC 

facilities. These proposed updates will 

not impose new requirements for State, 

local, or tribal governments. For the 

private sector facilities, the regulatory 

impact section, together with the 

remainder of the preamble, constitutes 

the analysis required under UMRA. 

I. Federalism Analysis 

Executive Order 13132 establishes 

certain requirements that an agency 

must meet when it issues a proposed 

rule that imposes substantial direct 

requirement costs on State and local 

governments, preempts State law, or 

otherwise has Federalism implications. 

With regard to the updates to the 

requirements for participation for LTC 

facilities, the provisions in this 

proposed rule are not intended to, and 

would not preempt the applicability of 

any State or local law providing a higher 

standard (in this case, a higher HPRD 

requirement for RNs and/or NAs or an 

RN coverage requirement in excess of at 

least one RN on site 24-hours per day, 

7 days a week) than would be required 

by this proposed rule. To the extent 

Federal standards exceed State and local 

law minimum staffing standards, no 

Federal pre-emption is implicated 

because facilities complying with 

Federal law would also be in 

compliance with State law. We are not 

aware of any State or local law 

providing for a maximum staffing level. 

This proposed rule, however, is 

intended to and would preempt the 

applicability of any State or local law 

providing for a maximum staffing level, 

to the extent that such a State or local 

maximum staffing level would prohibit 

a Medicare, Medicaid, or dually 

certified LTC facility from meeting the 

minimum HPRD requirements and RN 

coverage levels proposed in this rule or 

from meeting higher staffing levels 

required based on the facility 

assessment proposed in this rule. 

In accordance with the provisions of 

Executive Order 12866, this proposed 

rule was reviewed by the Office of 

Management and Budget. 

Chiquita Brooks-LaSure, 

Administrator of the Centers for 

Medicare & Medicaid Services, 

approved this document on August 15, 

2023. 

List of Subjects 

42 CFR Part 438 

Administrative practice and 

procedure, Grant programs—health, 

Health professions, Medicaid, Older 

adults, People with Disabilities, 

Reporting and recordkeeping 

requirements. 

42 CFR Part 442 

Administrative practice and 

procedure, Grant programs—health, 

Health professions, Medicaid, Older 

adults, People with Disabilities, 

Reporting and recordkeeping 

requirements. 

42 CFR Part 483 

Grant programs—health, Health 

facilities, Health professions, Health 

records, Medicaid, Medicare, Nursing 

homes, Nutrition, Reporting and 

recordkeeping requirements, Safety. 

For the reasons set forth in the 

preamble, the Centers for Medicare & 

Medicaid Services proposes to amend 

42 CFR chapter IV as set forth below: 

PART 438—MANAGED CARE 

■ 1. The authority citation for part 438 

continues to read as follows: 

Authority: 42 U.S.C. 1302. 

■ 2. Section 438.72 is added to subpart 

B to read as follows: 

§ 438.72 Additional requirements for longterm services and supports. 

(a) Nursing facilities services and 

services delivered in Intermediate Care 

Facilities for Individuals with 

Intellectual Disabilities. If the State 

includes nursing facility and/or ICF/IID 

services in their MCO or PIHP contracts, 

the State must include requirements in 

these contracts imposing obligations on 

the MCO or PIHP to the extent necessary 

to comply with the reporting 

requirements in § 442.43 of this 

subchapter, and must comply by the 

first rating period for contracts with 

MCOs or PIHPs beginning on or after the 

effective date specified in § 442.43(f) of 

this subchapter. 

(b) [Reserved] 

PART 442—STANDARDS FOR 

PAYMENT TO NURSING FACILITIES 

AND INTERMEDIATE CARE 

FACILITIES FOR INDIVIDUALS WITH 

INTELLECTUAL DISABILITIES 

■ 3. The authority citation for part 442 

continues to read as follows: 

Authority: Sec. 1102 of the Social Security 

Act (42 U.S.C. 1302), unless otherwise noted. 

■ 4. Section 442.43 is added to subpart 

B to read as follows: 

§ 442.43 Payment Transparency 

Reporting. 

(a) Definitions. (1) Compensation 

means, with respect to direct care 

workers and support staff delivering 

services authorized under this part: 

(i) Salary, wages, and other 

remuneration as defined by the Fair 

Labor Standards Act and implementing 

regulations (29 U.S.C. 201 et seq., 29 

CFR parts 531 and 778); 

(ii) Benefits (such as health and dental 

benefits, sick leave, and tuition 

reimbursement); and 

(iii) The employer share of payroll 

taxes. 

(2) Direct Care Worker means one of 

the following individuals who provides 

services to Medicaid-eligible 

individuals receiving services under 

this part, who may be employed by or 

contracted or subcontracted with a 

Medicaid provider or State or local 

government agency: 


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(i) A registered nurse, licensed 

practical nurse, nurse practitioner, or 

clinical nurse specialist; 

(ii) A certified nurse aide who 

provides services under the supervision 

of a registered nurse, licensed practical 

nurse, nurse practitioner, or clinical 

nurse specialist; 

(iii) A licensed physical therapist, 

occupational therapist, speech-language 

pathologist, or respiratory therapist; 

(iv) A certified physical therapy 

assistant, occupational therapy 

assistant, speech-language therapy 

assistant, or respiratory therapy 

assistant or technician; 

(v) A social worker; 

(vi) A personal care aide; 

(vii) A medication assistant, aide, or 

technician; 

(viii) A feeding assistant; 

(ix) Activities staff; or 

(x) Any other individual who is paid 

to provide clinical services, behavioral 

supports, active treatment (as defined at 

§ 483.440) or address activities of daily 

living (such as those described in 

§ 483.24(b)) for Medicaid-eligible 

individuals receiving Medicaid services 

under this part. 

(3) Support Staff means an individual 

who is not a direct care worker and who 

maintains the physical environment of 

the care facility or supports other 

services for residents. Support staff may 

be employed by or contracted or 

subcontracted with a Medicaid provider 

or State or local government agency. 

They include any of the following 

individuals: 

(i) A housekeeper; 

(ii) A janitor or environmental 

services worker; 

(iii) A groundskeeper; 

(iv) A food service or dietary worker; 

(v) A driver responsible for 

transporting residents; or 

(vi) Any other individual who is not 

a direct care worker and who maintains 

the physical environment of the care 

facility or supports other services for 

Medicaid-eligible individuals receiving 

Medicaid services under this part. 

(b) Reporting requirements. The State 

must report to CMS annually, by 

delivery system and by facility, the 

percent of Medicaid payments (which 

for fee-for-service includes base and 

supplemental payments as defined by 

section 1903(bb)(2) of the Social 

Security Act, and for payments from a 

managed care organization or prepaid 

inpatient health plan (as these entities 

are defined in § 438.2 of this chapter) 

includes the managed care 

organization’s or prepaid inpatient 

health plan’s contractually negotiated 

rate, State directed payments as defined 

in § 438.6(c) of this chapter, passthrough payments as defined in 

§ 438.6(a) of this chapter for nursing 

facilities, and any other payments from 

the managed care organization or 

prepaid inpatient health plan) for 

services specified in paragraph (b)(1) of 

this section, that is spent on 

compensation for direct care workers 

and on compensation for support staff, 

at the time and in the form and manner 

specified by CMS. 

(1) Services. Except as provided in 

paragraph (b)(2) of this section, 

reporting must be based on all Medicaid 

payments (including but not limited to 

FFS base and supplemental payments, 

and payments from an MCO or PIHP, as 

applicable) made to nursing facility and 

ICF/IID providers for Medicaid-covered 

services, with the exception of services 

provided in swing bed hospitals as 

defined in § 440.40(a)(1)(ii)(B) of this 

chapter. 

(2) Exclusion of specified payments. 

The State must exclude from its 

reporting to CMS payments claimed by 

the State for Federal financial 

participation under this part for which 

Medicaid is not the primary payer. 

(c) Report contents and methodology. 

(1) Contents. Reporting must provide 

information necessary to identify, at the 

facility level, the percent of Medicaid 

payments spent on compensation to: 

(i) Direct care workers at each nursing 

facility; 

(ii) Support staff at each nursing 

facility; 

(iii) Direct care workers at each ICF/ 

IID, and 

(iv) Support staff at each ICF/IID. 

(2) Methodology. The State must 

provide information according to the 

methodology, form, and manner of 

reporting stipulated by CMS. 

(d) Availability and accessibility 

requirements. The State must operate a 

website consistent with § 435.905(b) of 

this chapter that provides the results of 

the reporting requirements specified in 

paragraphs (b) and (c) of this section. In 

the case of the State that implements a 

managed care delivery system under the 

authority of sections 1915(a), 1915(b), 

1932(a), and/or 1115(a) of the Act and 

that includes nursing facility and/or 

ICF/IID services in their managed care 

organization or prepaid inpatient health 

plan contracts, the State may meet this 

requirement by linking to individual 

managed care organization or prepaid 

inpatient health plan websites. The 

State must: 

(1) Include clear and easy to 

understand labels on documents and 

links; 

(2) Verify no less than quarterly, the 

accurate function of the website and the 

current accuracy of the information and 

links; and 

(3) Include prominent language on the 

website explaining that assistance in 

accessing the required information on 

the website is available at no cost and 

include information on the availability 

of oral interpretation in all languages 

and written translation available in each 

non-English language, how to request 

auxiliary aids and services, and a tollfree and TTY/TDY telephone number. 

(e) Information reported by States. 

CMS must report on its website the 

results of the reporting requirements 

specified in paragraphs (b) and (c) of 

this section that the State reports to 

CMS. 

(f) Effective Date. The requirements in 

this section are effective [4 YEARS 

AFTER THE EFFECTIVE DATE OF THE 

FINAL RULE]. 

PART 483—REQUIREMENTS FOR 

STATES AND LONG TERM CARE 

FACILITIES 

■ 5. The authority citation for part 483 

continues to read as follows: 

Authority: 42 U.S.C. 1302, 1320a–7, 1395i, 

1395hh and 1396r. 

■ 6. Amend § 483.5 by adding the 

definitions of ‘‘Hours per resident day’’ 

and ‘‘Representative of direct care 

employees’’ in alphabetical order to 

read as follows: 

§ 483.5 Definitions. 

* * * * * 

Hours per resident day. Staffing hours 

per resident per day is the total number 

of hours worked by each type of staff 

divided by the total number of residents 

as calculated by CMS. 

* * * * * 

Representative of direct care 

employees. A representative of direct 

care employees is an employee of the 

facility or a third party authorized by 

direct care employees at the facility to 

provide expertise and input on behalf of 

the employees for the purposes of 

informing a facility assessment. 

* * * * * 

§ 483.10 [Amended] 

■ 7. Amend paragraph (h)(3)(i) by 

removing the reference ‘‘§ 483.70(i)(2)’’ 

and adding in its place the reference 

‘‘§ 483.70(h)(2)’’. 

§ 483.15 [Amended] 

■ 8. Amend paragraph (c)(8) by 

removing the reference ‘‘§ 483.70(l)’’ 

and adding in its place the reference 

‘‘§ 483.70(k)’’. 

§ 483.35 [Amended] 

■ 9. Amend § 483.35 by: 


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■ a. In the introductory text removing 

the reference ‘‘§ 483.70(e)’’ and adding 

in its place the reference ‘‘§ 483.71’’; 

■ b. Revising paragraphs (a)(1)(i), (ii); 

■ c. Adding paragraphs (a)(1)(iii) 

through (v); 

■ d. In paragraph (a)(2) removing the 

phrase ‘‘paragraph (c)’’ and adding in its 

place the phrase ‘‘paragraph (e)’’; 

■ e. Revising paragraph (b)(1); 

■ f. . In paragraph (e)(4) removing the 

phrase ‘‘paragraph (c)’’ and adding in its 

place the phrase ‘‘paragraph (e)’’; 

■ g. In paragraph (f)(2) removing the 

phrase ‘‘paragraph (d)(1)’’ and adding in 

its place the phrase ‘‘paragraph (f)(1)’’; 

■ h. Redesignating paragraph (g) as (h); 

■ i. Adding a new paragraph (g); and 

■ j. In newly redesignated paragraph 

(h)(2)(i) removing the phrase ‘‘paragraph 

(e)(1)’’ and adding in its place the 

phrase ‘‘paragraph (h)(1)’’. 

The revision and additions read as 

follows: 

§ 483.35 Nursing services. 

* * * * * 

(a) * * * 

(1) * * * 

(i) Licensed nurses, including but not 

limited to a minimum 0.55 hours per 

resident day for registered nurses (RN); 

and 

(ii) Other nursing personnel, in 

accordance with § 483.71, including but 

not limited to a minimum total of 2.45 

hours per resident day for nurse aides 

(NA). 

(iii) The 0.55 hours per resident day 

for RN and 2.45 hours per resident day 

for NA requirement may be exempted 

under paragraph (g) of this section for 

facilities that are found non-compliant 

and meet the eligibility criteria as 

determined by the Secretary. 

(iv) Determinations of compliance 

with hours per resident day 

requirements will be made based on the 

most recent available quarter of Payroll 

Based Journal System data submitted in 

accordance with § 483.70(p) of this part. 

(v) Compliance with minimum hours 

per resident day for RN and NA should 

not be construed as approval for a 

facility to staff only to these numerical 

standards. Facilities must ensure there 

are adequate staff with the appropriate 

competencies and skills sets necessary 

to assure resident safety and to attain or 

maintain the highest practicable 

physical, mental, and psychosocial 

well-being of each resident, as 

determined by resident assessments, 

acuity and diagnoses of the facility’s 

resident population in accordance with 

the facility assessment at § 483.71 of this 

part. 

* * * * * 

(b) * * * 

(1) Except when waived under 

paragraph (e) or (f) of this section, the 

facility must have a registered nurse on 

site 24 hours per day, for 7 days a week 

that is available to provide direct 

resident care. 

* * * * * 

(g) Hardship Exemption from the 

Minimum Hours Per Resident Day 

Requirements. A facility may be 

exempted by the Secretary from the 

requirements of paragraphs (a)(1)(i) and 

(ii) of this section if a verifiable 

hardship exists that prohibits the 

facility from achieving or maintaining 

compliance. The facility must meet the 

four following criteria to qualify for a 

hardship exemption: 

(1) Location. The facility is located in 

an area where: 

(i) The supply of applicable 

healthcare staff (either RN, or NA, or 

both) is not sufficient to meet area needs 

as evidenced by a medium (20 percent 

below the national average) or low (40 

percent below the national average) 

provider-population ratio for nursing 

workforce; or 

(ii) The facility is at least 20 miles 

from another long-term care facility, as 

determined by CMS; and 

(2) Good Faith Efforts to Hire. The 

facility demonstrates that it has been 

unable, despite diligent efforts, 

including offering at least prevailing 

wages, to recruit and retain appropriate 

personnel. The information is verified 

through: 

(i) Job listings in commonly used 

recruitment forums found online at 

American Job Centers (coordinated by 

the U.S. Department of Labor’s 

Employment and Training 

Administration), and other forums as 

appropriate; 

(ii) Documented job vacancies 

including the number and duration of 

the vacancies and documentation of 

offers made, including that they were 

made at least at prevailing wages; 

(iii) Data on the average wages in the 

Metropolitan Statistical Area in which 

the facility is located and vacancies by 

industry as reported by the Bureau of 

Labor Statistics or by the State’s 

Department of Labor; and 

(iv) The facility’s staffing plan in 

accordance with § 483.71(b)(4) of this 

subpart; and 

(3) Demonstrated Financial 

Commitment. The facility demonstrates 

through documentation the amount of 

financial resources that the facility 

expends on nurse staffing relative to 

revenue. 

(4) Exclusions. Facilities must not: 

(i) Be a Special Focus Facility, 

pursuant to the Special Focus Facility 

Program established under sections 

1819(f)(8) and 1919(f)(10) of the Act; or 

(ii) Have been cited for having 

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 noncompliance is identified, or 

(iii) Have failed to submit Payroll 

Based Journal data in accordance with 

§ 483.70(p). 

(iv) An exemption under this 

paragraph does not constitute a waiver 

of paragraph (b) of this section. Such a 

waiver must be granted in accordance 

with paragraph (e) or (f) of this section. 

(5) Determination of Eligibility. The 

Secretary will determine eligibility for 

an exemption based on the criteria in 

paragraphs (g)(1) through (4) of this 

section. The facility must provide 

supporting documentation when 

requested. 

(6) Timeframe. The term for a 

hardship exemption is 1-year, unless the 

facility becomes an SFF facility or is 

cited for widespread insufficient staffing 

with resultant resident actual harm or a 

pattern of insufficient staffing with 

resultant resident actual harm. A 

hardship exemption may be extended 

on a yearly basis, after the initial 1-year 

period, if the facility continues to meet 

the exemption criteria in paragraphs 

(g)(1) through (4) of this section, as 

determined by the Secretary. There are 

no limits on the number of exemptions 

that an eligible facility can be granted. 

* * * * * 

§ 483.40 [Amended] 

■ 10. Amend § 483.40 by: 

■ a. In paragraphs (a) introductory text 

and (a)(1) removing the reference 

‘‘§ 483.70(e)’’ and adding in its place the 

reference ‘‘§ 483.71’’; and 

■ b. In paragraph (c)(2) by removing the 

reference ‘‘§ 483.70(g)’’ and adding in its 

place the reference ‘‘§ 483.70(f)’’. 

§ 483.45 [Amended] 

■ 11. Amend § 483.45 in the 

introductory text by removing the 

reference ‘‘§ 483.70(g)’’ and adding in its 

place the reference ‘‘§ 483.70(f)’’. 

§ 483.55 [Amended] 

■ 12. In § 483.55 amend paragraphs 

(a)(1) and (b)(1) by removing the 

reference ‘‘§ 483.70(g)’’ and adding in its 

place the reference ‘‘§ 483.70(f)’’. 

§ 483.60 [Amended] 

■ 13. In § 483.60 amend paragraph (a) 

introductory text by removing the 


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reference ‘‘§ 483.70(e)’’ and adding in its 

place the reference ‘‘§ 483.71’’. 

§ 483.65 [Amended] 

■ 14. In § 483.65 amend paragraph (a)(2) 

by removing the reference ‘‘§ 483.70(g)’’ 

and adding in its place the reference 

‘‘§ 483.70(f)’’. 

§ 483.70 [Amended] 

■ 15. Amend § 483.70 by— 

■ a. Removing paragraph (e); and 

■ b. Redesignating paragraphs (f) 

through (q) as paragraphs (e) through 

(p), respectively. 

■ 16. Section § 483.71 is added to 

subpart B to read as follows: 

§ 483.71 Facility Assessment. 

The facility must conduct and 

document a facility-wide assessment to 

determine what resources are necessary 

to care for its residents competently 

during both day-to-day operations 

(including nights and weekends) and 

emergencies. The facility must review 

and update that assessment, as 

necessary, and at least annually. The 

facility must also review and update 

this assessment whenever there is, or 

the facility plans for, any change that 

would require a substantial 

modification to any part of this 

assessment. 

(a) The facility assessment must 

address or include the following: 

(1) The facility’s resident population, 

including, but not limited to: 

(i) Both the number of residents and 

the facility’s resident capacity; 

(ii) The care required by the resident 

population, using evidence-based, datadriven methods that consider the types 

of diseases, conditions, physical and 

behavioral health issues, cognitive 

disabilities, overall acuity, and other 

pertinent facts that are present within 

that population, consistent with and 

informed by individual resident 

assessments as required under § 483.20 

of this part; 

(iii) The staff competencies and skill 

sets that are necessary to provide the 

level and types of care needed for the 

resident population; 

(iv) The physical environment, 

equipment, services, and other physical 

plant considerations that are necessary 

to care for this population; and 

(v) Any ethnic, cultural, or religious 

factors that may potentially affect the 

care provided by the facility, including, 

but not limited to, activities and food 

and nutrition services. 

(2) The facility’s resources, including 

but not limited to the following: 

(i) All buildings and/or other physical 

structures and vehicles; 

(ii) Equipment (medical and nonmedical); 

(iii) Services provided, such as 

physical therapy, pharmacy, behavioral 

health, and specific rehabilitation 

therapies; 

(iv) All personnel, including 

managers, nursing and other direct care 

staff (both employees and those who 

provide services under contract), and 

volunteers, as well as their education 

and/or training and any competencies 

related to resident care; 

(v) Contracts, memorandums of 

understanding, or other agreements with 

third parties to provide services or 

equipment to the facility during both 

normal operations and emergencies; and 

(vi) Health information technology 

resources, such as systems for 

electronically managing patient records 

and electronically sharing information 

with other organizations. 

(3) A facility-based and communitybased risk assessment, utilizing an allhazards approach as required in 

§ 483.73(a)(1). 

(4) The input of facility staff, 

including, but not limited to nursing 

home leadership, management, direct 

care staff, the representatives of direct 

care employees, and staff providing 

other services. 

(b) The facility must use this facility 

assessment to: 

(1) Inform staffing decisions to ensure 

that there are a sufficient number of staff 

with the appropriate competencies and 

skill sets necessary to care for its 

residents’ needs as identified through 

resident assessments and plans of care 

as required in § 483.35(a)(3). 

(2) Consider specific staffing needs for 

each resident unit in the facility, and 

adjust as necessary based on changes to 

its resident population. 

(3) Consider specific staffing needs for 

each shift, such as day, evening, night, 

and adjust as necessary based on any 

changes to its resident population. 

(4) Develop and maintain a plan to 

maximize recruitment and retention of 

direct care staff. 

(5) Inform contingency planning for 

events that do not require activation of 

the facility’s emergency plan, but do 

have the potential to affect resident care, 

such as, but not limited to, the 

availability of direct care nurse staffing 

or other resources needed for resident 

care. 

§ 483.75 [Amended] 

■ 17. Amend § 483.75 by: 

■ a. In paragraph (c)(2) removing the 

reference ‘‘§ 483.70(e)’’ and adding in its 

place the reference ‘‘§ 483.71’’; and 

■ b. In paragraph (e)(3) removing the 

reference ‘‘§ 483.70(e)’’ and adding in its 

place the reference ‘‘§ 483.71’’. 

§ 483.80 [Amended] 

■ 18. In § 483.80 amend paragraph (a)(1) 

by removing the reference ‘‘§ 483.70(e)’’ 

and adding in its place the reference 

‘‘§ 483.71’’. 

§ 483.95 [Amended] 

■ 19. In § 483.95 amend the 

introductory text by removing the 

reference ‘‘§ 483.70(e)’’ and adding in its 

place the reference ‘‘§ 483.71’’. 

Xavier Becerra, 

Secretary, Department of Health and Human 

Services. 

[FR Doc. 2023–18781 Filed 9–1–23; 8:45 am] 

BILLING CODE 4120–01–P 


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