Waiver of Nurse Staffing Requirements

7014.1 - Waiver of Nurse Staffing Requirements (Rev. 244; Issued: 06-26-26; Effective: 06-26-26; Implementation: 06-26-26) . Under 42 CFR 483.35(e) and (f) of the Act, Medicaid-certified Nursing Facilities (NFs), Medicare-certified Skilled Nursing Facilities (SNFs), and dually-certified SNF/NFs may obtain a waiver of the requirements to have licensed nurses 24 hours a day and/or the requirement to have a registered nurse (RN) for 8 consecutive hours a day, 7 days a week, and provide the services of a RN more than 40 hours a week if the facility meets certain criteria. To obtain a waiver, a facility must send a request to the state agency. A request may be submitted at any time, but prior to obtaining a waiver, a facility must be surveyed to determine if they meet the requirements to qualify for a waiver. During the survey: • If a facility has never been granted a waiver, or was granted a waiver in the past, but did not have a waiver after the last survey: the facility is cited for noncompliance with the applicable requirements, and the state agency will then determine if the facility meets the requirements to qualify for a waiver. o For NFs/SNFs, the applicable citation should only be reflective of the failure of the facility to meet the numerical requirements for having 24 hours of licensed nurses or eight consecutive hours per day of an RN and the deficiency must not be higher than a level 1 (no actual harm with a potential for minimal harm) as the waiver cannot endanger the health or safety of individuals staying in the facility, per483.35(e)(2) ). For example, if the survey team finds the facility fails to provide sufficient staff to meet each resident’s needs, resulting in a level 2 deficiency (no actual harm with potential for more than minimal harm), the waiver shall not be granted as the team has identified that the level of staffing has endangered the health and safety of residents. o For SNF-only facilities, only the requirement to have an RN onsite eight consecutive hours a day may be waived, and the survey team must verify the facility meets the criteria specified in 483.35(f)(1)(ii) • If a facility was granted a waiver on the last survey: the surveyors will determine if the facility continues to meet the requirements to qualify for a waiver. o If the facility continues to meet the waiver requirements, the facility is not cited for the applicable deficiency and a renewal of the waiver may be granted. o If the facility no longer meets the requirements for a waiver, the facility is cited, and a waiver is not granted. The waiver(s) available to a facility is(are) based on the type of facility, as follows: • If a facility is a SNF-only, the facility may obtain a waiver of the requirement for an RN for 8 consecutive hours a day, 7 days a week, as long as the requirements in §483.35(g) are met. • If a facility is a NF-only, the facility may obtain waivers of the requirement for an RN for at least 8 consecutive hours a day, 7 days a week, and/or the requirement to have licensed nurses 24 hours a day, as long as the requirements in §483.35(f) are met. • If a facility is a dually-certified SNF/NF, both sets of waiver requirements in §483.35(f) and (g) apply, and the only waiver available is the waiver of the requirement for an RN for at least 8 consecutive hours a day, 7 days a week. This is because as a SNF, a waiver of the requirement to have licensed nurses 24 hours a day is not available. Additionally, both sets of requirements in §483.35(f) and (g) for a waiver must be met to be granted a waiver, and therefore, the limited requirements prevail. For example, a dually-certified SNF/NF must be located in a rural area with an inadequate supply of SNF services to qualify for a waiver of the RN for 8 consecutive hours a day, 7 days a week. More details on these waivers are described in the sections below. Each state agency and CMS Location must accurately document any waiver granted under483.35(e) or (f). The information must be documented on the form CMS-671 and entered in the CMS survey and certification system, such as the Internet Quality Improvement and Evaluation System (iQIES), or subsequent system. The state agency and CMS Locations must accurately document the following on the CMS-671 that is completed with the survey when a facility’s qualifications for such waivers are assessed: When granting a waiver: 1. Date the survey was completed to verify resident safety if the waiver was granted; 2. Date the waiver was granted; 3. Specific waiver granted; and 4. Number of hours waived each week. When a waiver request is denied or terminated , the state agency or the CMS Location must include the reason for the denial or termination in the Statement of Deficiencies, Form CMS-2567.