Nursing home safety regulations

Proposed regulations, 88 Fed. Reg. 61352 (Sept. 6, 2023)

Click to access 2023-18781.pdf

Final regulations, 89 Fed. Reg. 40876 (May 10, 2024)

Click to access 2024-08273.pdf

Corrections to final regulations, 89 Fed. Reg. 52392 (June 24, 2024)

Click to access 2024-13795.pdf

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Statute: 1819 (Medicare), 1919 (Medicaid)

1919(d)(4)(B)

(d) Requirements relating to administration and other matters

(4) Miscellaneous

(A) Compliance with Federal, State, and local laws and professional standards

A nursing facility must operate and provide services in compliance with all applicable Federal, State, and local laws and regulations (including the requirements of section 1320a–3 of this title) and with accepted professional standards and principles which apply to professionals providing services in such a facility.

(B) Other

A nursing facility must meet such other requirements relating to the health and safety of residents or relating to the physical facilities thereof as the Secretary may find necessary.

1919(b)(4)(C)

(i) General requirementsWith respect to nursing facility services provided on or after October 1, 1990, a nursing facility—

(I)

except as provided in clause (ii), must provide 24-hour licensed nursing services which are sufficient to meet the nursing needs of its residents, and

(II)

except as provided in clause (ii), must use the services of a registered professional nurse for at least 8 consecutive hours a day, 7 days a week.

(ii) Waiver by StateTo the extent that a facility is unable to meet the requirements of clause (i), a State may waive such requirements with respect to the facility if—

(I)

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,

(II)

the State determines that a waiver of the requirement will not endanger the health or safety of individuals staying in the facility,

(III)

the State finds that, for any such periods in which licensed nursing services are not available, a registered professional nurse or a physician is obligated to respond immediately to telephone calls from the facility,

(IV)

the State agency granting a waiver of such requirements provides notice of the waiver to the State long-term care ombudsman (established under section 307(a)(12) [1] of the Older Americans Act of 1965) and the protection and advocacy system in the State for the mentally ill and the mentally retarded, and

(V)

the nursing facility that is granted such a waiver by a State notifies residents of the facility (or, where appropriate, the guardians or legal representatives of such residents) and members of their immediate families of the waiver.

A waiver under this clause shall be subject to annual review and to the review of the Secretary and subject to clause (iii) shall be accepted by the Secretary for purposes of this subchapter to the same extent as is the State’s certification of the facility. In granting or renewing a waiver, a State may require the facility to use other qualified, licensed personnel.

(iii) Assumption of waiver authority by Secretary

If the Secretary determines that a State has shown a clear pattern and practice of allowing waivers in the absence of diligent efforts by facilities to meet the staffing requirements, the Secretary shall assume and exercise the authority of the State to grant waivers.

List of cases

American Health Care Ass’n v. Becerra, No. 2:24-cv-114 (N.D. Tex., filed May 23, 2024)

Kansas v. Becerra, No. 1:24-cv-110 (N.D. Iowa, filed 10/8/2024)

Texas v. Becerra, No. 2:24-cv-171 (N.D. Tex, filed August 14, 2024) (consolidated into AHCA)

NORTHERN TEXAS

American Health Care Ass’n v. Becerra, No. 2:24-cv-114 (N.D. Tex., filed May 23, 2024)

Complaint

Click to access ahca-nh-complaint-5-23-24.pdf

Click to access ahca-nh-certificate-interested-persons-5-23-24.pdf

Joint motion for scheduling order, August 9, 2024

Click to access ahca-nh-joint-mo-briefing-sched-8-9-24.pdf

Scheduling order, August 13, 2024