CMS SOM App. PP, Tag F731

Waiver of requirement to provide licensed nurses and a registered nurse on a 24-hour basis.

To the extent that a facility is unable to meet the requirements of paragraphs (a)(1)

and (b)(1)(i) and (c)(1) of this section, a State may waive such requirements with

respect to the facility if—

§483.35(f)(1) The facility demonstrates to the satisfaction of the State that the

facility has been unable, despite diligent efforts (including offering wages at the

community prevailing rate for nursing facilities), to recruit appropriate personnel;

§483.35(f)(2) The State determines that a waiver of the requirement will not

endanger the health or safety of individuals staying in the facility;

§483.35(f)(3) The State finds that, for any periods in which licensed nursing services

are not available, a registered nurse or a physician is obligated to respond

immediately to telephone calls from the facility;

§483.35(f)(4) A waiver granted under the conditions listed in paragraph (e) of this

section is subject to annual State review;

§483.35(f)(5) In granting or renewing a waiver, a facility may be required by the

State to use other qualified, licensed personnel;

§483.35(f)(6) The State agency granting a waiver of such requirements provides

notice of the waiver to the Office of the State Long-Term Care Ombudsman

(established under section 712 of the Older Americans Act of 1965) and the

protection and advocacy system in the State for individuals with a mental disorder

who are eligible for such services as provided by the protection and advocacy

agency; and

§483.35(f)(7) The nursing facility that is granted such a waiver by a State notifies

residents of the facility and their resident representatives of the waiver.

§483.35(g) SNFs

Waiver of the requirement to provide services of a registered nurse for at least 112

hours a week.

§483.35(g)(1) The Secretary may waive the requirement that a SNF provide the

services of a registered nurse for more than 40 hours a week, including a director of

nursing specified in paragraph (c) of this section, if the Secretary finds that—

(i) The facility is located in a rural area and the supply of skilled nursing

facility services in the area is not sufficient to meet the needs of

individuals residing in the area;

(ii) The facility has one full-time registered nurse who is regularly on duty at

the facility 40 hours a week; and

(iii) The facility either—

(A) Has only patients whose physicians have indicated (through physicians’

orders or admission notes) that they do not require the services of a

registered nurse or a physician for a 48-hours period or;

(B) Has made arrangements for a registered nurse or a physician to spend

time at the facility, as determined necessary by the physician, to provide

necessary skilled nursing services on days when the regular full-time

registered nurse is not on duty;

(iv) The Secretary provides notice of the waiver to the Office of the State

Long-Term Care Ombudsman (established under section 712 of the

Older Americans Act of 1965) and the protection and advocacy system in

the State for individuals with developmental disabilities or mental

disorders; and

(v) The facility that is granted such a waiver notifies residents of the facility and

their resident representatives of the waiver.

§483.35(g)(2) A waiver of the registered nurse requirement under paragraph (g)(1)

of this section is subject to annual renewal by the Secretary.

INTENT

To give the facility flexibility, in limited circumstances, when the facility cannot meet

nurse staffing requirements.

GUIDANCE

If the facility is Medicaid-certified only, the State has the authority to grant a waiver of

the RN requirement, and/or the 24-hour licensed nurse requirement. CMS is delegated

the waiver authority for SNFs, including dually-participating facilities (SNF/NFs). The

Medicare waiver authority is far more limited than is the States’ authority under

Medicaid since a State may waive any element of the nurse staffing requirement, whereas

the Secretary (CMS) may only waive the RN requirement. The requirements that a

registered nurse provide services for 8 hours a day, 7 days a week (more than 40 hours a

week), and that there be an RN designated as director of nursing on a full-time basis, may

be waived by the Secretary (CMS) in the following circumstances:

• The facility is located in a rural area with an inadequate supply of SNF services to

meet area needs. Rural is defined as “all areas not delineated as `urban`” by the

Bureau of Census, based on the most recent census;

• The facility has one full-time registered nurse regularly working 40 hours a week.

This may be the same individual, or part-time individuals. This nurse may or may

not be the DON, and may perform some DON and some clinical duties if the

facility so desires; and either;

o The facility has only residents whose physicians have noted, in writing, do not

need RN or physician care for a 48-hour period. This does not relieve the

facility from responsibility for providing for emergency availability of a

physician, when necessary, nor does it relieve the facility from being

responsible for meeting all needs of the residents during those 48 hours; OR

o A physician or RN will spend the necessary time at the facility to provide care

residents need during the days that an RN is not on duty. This requirement

refers to clinical care of the residents that need skilled nursing services.

• If a waiver of this requirement has been granted, conduct a survey of nursing

services during each certification survey. Dually-participating facilities must

meet the waiver provisions of the SNF.

A survey of Nursing Services must be conducted if a waiver has been granted or

requested.

PROBES

Before granting a continuation of this waiver, or during the annual review, coordinate

with the State Survey Agency, and at a minimum, determine:

• The facility’s recruitment efforts and its results.

• How the facility ensures residents’ needs are being met in the absence of a

licensed nurse.

• How all nursing policies and procedures are followed on each shift during times

when licensed services are waived?

• If there is a qualified licensed nurse to assess, evaluate, plan and implement

resident care.

• If care is being carried out according to professional practice standards on each

shift.

• Whether the survey team can assure the State that the absence of licensed nurses

will not endanger the health or safety of residents.

• Whether there are trends in the facility, which might be indicators of decreased

quality of care as a result of insufficient staffing to meet resident needs (e.g.,

increases in incident reports, the infection rate, hospitalizations, loss of function,

etc.).

• Whether there is evidence that preventive measures (e.g., turning, ambulating) are

taken to avoid poor quality of care outcomes and avoidable sudden changes in

health status.

• Whether there is evidence that sudden changes in resident health status and

emergency needs are being properly identified and managed by appropriate

facility staff and in a timely manner.

• Whether the residents or resident representatives been notified that the facility has

a waiver to provide licensed nurses on a 24-hour basis.

• Whether there is an increase in hospitalizations because licensed personnel are not

available to provide appropriate services.

• Whether the facility meets all applicable requirements to continue to receive a

waiver.

• Whether the staff indicates that an RN or physician is available to respond

immediately to telephone calls when licensed nurses are not available.

If the SNF has a waiver of the more than 40 hours a week RN requirement:

• Is there an RN on duty 40 hours a week?

• If more than one RN provides the 40 hour per week coverage, how is information

exchanged that maintains continuity of resident care?

• Does each resident’s clinical record have documentation by the physician that the

resident does not need services of a physician or an RN for a 48-hour period each

week?

• Are there any emergency or routine services that should be, but are not, provided

to residents during the days that a registered nurse is not on duty?

• If specific skilled care is necessary for a resident during the time that an RN is not

on duty, does an RN or physician provide that service on an “as needed” basis?

• Did the facility notify the residents of the facility and their resident

representatives of the waiver?

If the SNF requests continuation of the waiver to provide the services of a registered

nurse for more than 40 hours a week, the survey team is to provide the CMS Location

with information needed to grant this continuation.

• Does the SNF meet all requirements necessary for continuation of the waiver?

PROCEDURES

The following procedure should be used to document that a facility has a waiver of nurse

staffing requirements.

When a facility does not meet the nurse staffing requirements, cite the appropriate tag. If

the facility does have a waiver, reference the tag number based on the type of facility.

The type of facility (SNF, NF, or SNF/NF) determines what type of waiver is granted:

• For SNFs and SNF/NFs which may be waived from the requirement to provide

more than 40 hours of registered nurse services a week, and for NFs which have

been granted a waiver from the 56-hour registered nurse requirement, cite F727;

o For NFs that have a waiver of the 24-hour licensed nursing requirement, cite

F725, or

o Both facility types could be waived for the requirement to designate a

registered nurse as the director of nursing on a full-time basis. Cite F731.

If the facility has an approved nurse staffing waiver, it is not considered a deficiency.

The facility does not need to submit a Plan of Correction.