CMS Views Hardship Exemptions, Staggered Timeline as Easing Growing Pains From the Nursing Home Staffing Mandate

The Centers for Medicare & Medicaid Services (CMS) provided more details Wednesday on the implementation of facility assessments and exemptions extended to nursing homes over the final staffing rule.

In a national stakeholder call, CMS officials addressed these issues as well as the possibility of modifying the minimum staffing thresholds in the future along with their decision to include licensed practical nurses to count towards the minimum staffing requirements.

“CMS plans to conduct ongoing monitoring and evaluation of the staffing requirements within this final rule as they are implemented over the next several years,” said Adam Richards, deputy director at CMS’ Center for Clinical Standards and Quality. “Should subsequent data indicate that additional revisions to the staffing requirements or definitions or the exception framework are warranted, we will revisit these standards and update the regulations as needed.”


One of the modifications made since the proposed rule was issued in September 2023 is the inclusion of LPNs.

“We are providing the flexibility for long-term care facilities to count LPNs based on the evidence that we’ve had during the proposed rulemaking cycle, as well as some of what we saw come through during the public comment period,” Richards said.

The final rule mandates a minimum of 3.48 hours per resident per day (HPRD) of total staffing, with specific allocations for registered nurses (RN) and nurse aides.


This standard encompasses 0.55 HPRD of direct RN care and 2.45 HPRD of direct nurse aide care. CMS said that facilities can use a mix of nurse staff, including RNs, LPNs/LVNs, or nurse aides, to meet the additional 0.48 HPRD.

Rural counties have five years to implement the minimum staffing standards while urban areas are allowed up to three years. Urban counties are defined as those that have a population of 50,000 or more people.

“Overall, we strongly believe that this is a balanced final rule that reflects the available evidence and public comments, and it is responsive to potential workforce concerns particularly in rural areas. And most importantly, it protects residents from unsafe low quality care while also improving the care that residents receive on a daily basis,” Richards said.

Facility assessments key in addressing shifting staff needs

According to the final rule’s facility assessment stipulation, facilities must use evidence-based methods when care planning for their residents, Richards said.

“We appreciate all of the supportive comments on the continued use of facility assessment, of a foundational approach to identifying the resources needed to safely and effectively care for residents,” he said. “We are also requiring that facilities include the inputs of facility staff.”

The federal agency will expect nursing homes to consider the specific staffing needs for each shift and adjust as necessary based on any changes to the resident population, he said.

Jean Moody-Williams, deputy center director at CMS’ Center for Clinical Standards and Quality, said a template on how to do the facility assessment is forthcoming.

“Additional information will be coming out as we work with our quality safety and oversight group and our survey and oversight group on that matter,” Moody-Williams said.

Hardship exemptions

Along with staggered implementation, certain exemptions as well as the inclusion of LPNs will allow for the flexibility that the industry pushed for during the comment period, officials said.

“We received many comments on the exemption framework both in support and opposition [and made modifications] to provide flexibility to long-term care facilities that are truly facing hardships,” RIchards said.

Facilities facing challenges will be able to get temporary relief from both the minimum staffing requirements as well as 8 hours of the 24/7 on-site RN requirements.

However, in order to qualify for the exemptions, the facility must be in a workforce shortage area where the provider to population ratio is 20% below the national average. And, in order to ultimately receive the exemption, the facility must document a good faith effort to hire as well as the annual amount spent on staff. On top of these conditions, two additional transparency criteria – based on public comments – will also be considered.

“A long term care facility must post their exemption status within the facility and must also provide residents, prospective residents and the state ombudsman with an individual notice of the exemption status including the degree to which they do not meet the staffing requirements.” Richards said. “Importantly, I would also note that the existing statutory waivers specific to the on-site registered nurse remain. Our final exemption framework complements those waivers and provides flexibility for long-term care facilities that may not qualify for a statutory waiver.”

Certain types of facilities will not be able to receive these exemptions under the final rule, regardless of the challenges they face, he said. These include facilities that fail to submit data to the Payroll-Based Journal (PBJ) system, are identified as a special focus facility, or have shown within the preceding 12 months a widespread pattern of insufficient staffing that has resulted in serious harm or death to a resident.

Moreover, Richards said that a facility cannot apply for an exemption. The status will be determined by surveys.

“We want to ensure that residents are safe and receiving quality care before providing an exemption. And this type of safeguard is not something we can necessarily do through an application process or through a blanket exemption.”

And so prior to being granted an exemption, the nursing home must be surveyed to assess the health and safety of residents, he said.

Moreover, if a facility is found non-compliant with the minimum staffing requirements while not meeting the exclusionary criteria, then the facility will need to show documentation of a good faith effort to hire and retain staff. It will also need to demonstrate a financial commitment to adequate staffing, submitted to the state or to CMS.

It’s also important to note that the hardship exemptions have time limits.

“Following the initial survey to determine eligibility, a facility will be reevaluated at every recertification as to whether it is eligible for renewal of a hardship exemption. Of course, we strongly encourage facilities to conduct a facility assessment and to work expeditiously to meet the minimum staffing requirements,” Richards said.

Easing the challenges in the near term

The federal government has launched a nursing home staffing campaign, with plans for CMS to invest over $75 million, Moody-Williams noted. This will support state efforts to allow nursing homes to meet the minimum staffing requirements, she said.

“​​We’re partnering with states to bolster nurse recruitment in their states. For example, states will be able to invest their funds and combine their funds with ours to improve nurse training websites and increase the number of financial incentives that are available for registered nurses in their state,” said Moody-Williams. “And so, right now we’re conducting comprehensive research to help inform the structure of the program and we look forward to releasing additional information later this year. “

Noting that the funds aren’t part of the final rule, Moody-Williams said that these financial incentives will be distributed in 2025.

And while nursing home advocacy groups believe a much bigger price tag – and presence of workers – will be needed to fulfill the requirements, CMS officials said that they believe it’s achievable in the long run, with exemptions mitigating any challenges in the near term.

“Our focus with this rule is on advancing implementable solutions that promote safe and high quality care for residents while considering the current challenges that some facilities may be facing,” Richards said. “With that consideration … we have finalized a staggered implementation of the final provisions for facilities based on geographic location to provide a runway toward compliance as well as temporary exemptions for facilities that are facing a true hardship despite their best efforts to hire nursing staff.”

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