The federal government has made a variety of changes to federal requirements aimed at improving the quality of care at long-term care facilities across the country.
In May 2024, the United States Department of Health and Human Services (HHS) finalized and published the contentious Nursing Home Minimum Staffing Rule (Rule), which establishes minimum staffing requirements for federally funded long-term care facilities (LTCs) such as skilled nursing facilities for Medicare and nursing facilities for Medicaid.
Our article in The Health Lawyer, an American Bar Association publication, explains the Rule in detail, including the Centers for Medicare & Medicaid Services’ (CMS) responses to criticism regarding the Rule. Responses by a federal agency to comments made by stakeholders to a proposed rule tend to be the more interesting aspects of the rulemaking process. The Rule was no exception. For example, many stakeholders commented that the increased staffing requirements set forth in the Rule were unattainable due to practical challenges, such as the industry-wide nursing shortage, and the financial burdens associated with increasing staff. In response, CMS made clear that it expects LTCs to bear the brunt of those financial burdens and even suggested that LTCs increase rates with payors, the latter of which is an interesting position considering the rate pressure CMS has imposed on the health care industry with recent rate cuts or proposed rate cuts regarding Medicare and Medicaid.
Since the Rule became effective, various entities and about 40 states have sued HHS and CMS over the Rule in various lawsuits across the country, finding new hope with the elimination of the Chevron doctrine in Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024). In response, CMS launched the much anticipated Nursing Home Staffing Campaign to address the industry-wide workforce shortage concerns as stakeholders attempt to stop the Rule in the courts. The campaign includes efforts by CMS to promote nursing aide training programs, a nurse recruitment website, and partnerships with state governments and nursing home organizations to amplify the campaign.
In addition to the Rule and the Nursing Home Staffing Campaign, CMS has released two memorandums to State Survey Agency directors with revisions to state inspection requirements at LTCs and significant revisions to LTC surveyor guidance. The details for each are described below.
- 2025 State Inspection Requirements
On October 23, 2024, CMS released its Fiscal Year (FY) 2025 State Performance Standards System (SPSS) Guidance (SPSS Guidance), setting forth the process for overseeing performance by State Survey Agencies that ensure Medicare/Medicaid certified providers and suppliers are compliant with federal requirements. The SPSS Guidance is provided annually by CMS as it works with the State Survey Agencies to strengthen oversight to ensure compliance with federal mandates.
The SPSS Guidance breaks down 13 measures used to evaluate providers, including LTCs, into three domains: Survey and Intake Process; Survey and Intake Quality; and Noncompliance Resolution. Performance measures under the SPSS Guidance are scored as “Met,” “Partially Met,” and “Not Met.” Primary changes to the SPSS for FY 2025 applicable to LTCs include: 1) the removal of two measures from FY 2024: the data submission measure and measures on the timeliness of upload of recertification surveys; 2) the addition of a new measure to the Survey and Intake Quality domain, the Nursing Home Recertification Survey Deficiency Citation and Tasks Investigated; and 3) the reintroduction of an updated version of the measure, Assessment of Deficiency Identification using Federal Comparative Surveys. The changes are discussed in further detail below.
CMS explains that it has discontinued the data submission and timeliness of upload measures because it is transitioning from QIES to iQIES, and iQIES implementation will enable seamless survey uploads.
Under the new Nursing Home Recertification Survey Deficiency Citation and Tasks Investigated measure, CMS will assess the frequency and type of LTC deficiencies and the completion of mandatory or triggered tasks on recertification surveys. This measure combines six measures into a composite score: 1) Number of Deficiencies per 1,000 Beds, 2) Percentage of Deficiency-Free Surveys, 3) Percentage of Surveys Identifying G, H or I Scope and Severity, 4) Percentage of Surveys Identifying J, K or L Scope and Severity, 5) Percentage of Surveys where 1 or more Mandatory Tasks Not Investigated, and (6) Percentage of Surveys where 1 or more Triggered Tasks Not Investigated. In a change from other SPSS measures, CMS will assign each state a classification of “Requires Research” or “N/A” based on the composite score for this measure rather than a score of Met, Not Met, or Partially Met.
Lastly, the reintroduction of an updated version of the measure Assessment of Deficiency Identification using Federal Comparative Surveys involves a process where CMS will assess whether State Survey Agency citations are similar to findings by CMS’ local agencies on federal comparative surveys. This threshold criterion evaluates the State Survey Agency’s identification of on-site findings of noncompliance during health recertification surveys as measured by federal comparative survey results. For 80 percent or higher of the deficiencies cited on the federal comparative surveys that are designated as potential for more than minimal harm, the State Survey Agency must cite the same findings on its survey at the same or higher scope and severity level. Like most of the other measures, this will be measured by “Met,” “Partially Met,” and “Not Met” or “N/A.”
The FY25 SPSS results will be available for review and informal requests for reconsideration (IRRs) are accepted beginning January 16, 2026. The deadline for State Survey Agencies to submit IRRs is February 6, 2026. FY25 SPSS results will be finalized by February 27, 2026, and Corrective Action Plans are due from states by March 13, 2026.
- LTC Survey Guidance
On November 18, 2024, CMS published revised guidance for LTC surveyors, which State Survey Agencies must begin using by February 24, 2025, to determine compliance (the Surveyor Guidance). The Surveyor Guidance updates Appendix PP of the State Operations Manual. The “significant revisions” are meant to enhance quality and oversight of the LTC survey process. The areas of the Surveyor Guidance that have been revised include Admission, Transfer & Discharge, Chemical Restraints/Unnecessary Psychotropic Medication, Resident Assessment, Quality of Life and Quality of Care, Administration, Quality Assurance Performance Improvement, and Infection Prevention and Control, among other areas. The Surveyor Guidance also offers associated training and resources for surveyors and providers, which are available in CMS’ Quality, Safety, and Education Portal.
The Surveyor Guidance, among other things, clarifies guidance prohibiting admission agreements from containing language requesting or requiring a third-party guarantee of payment, makes changes to strengthen CMS’ message that LTCs must prevent the unnecessary use of psychotropic medications, updates professional standards and medical director responsibilities, and adds new guidance incorporating health equity concerns when obtaining feedback, collecting and monitoring data related to outcomes of subpopulations, and analyzing factors known to affect health equity, such as race, socioeconomic status, or language, when investigating medical errors and adverse events. Notably, the Surveyor Guidance added instructions for treating patients with psychotropic medication, including a resident’s right to refuse treatment, and COVID-19 immunization education requirements for residents.