Nursing Facility (NF)-Only Waivers of Nurse Staffing

7014.1.2 - Nursing Facility (NF)-Only Waivers of Nurse Staffing Requirements in Nursing Facilities (Rev. 244; Issued: 06-26-26; Effective: 06-26-26; Implementation: 06-26-26) §483.35(e) Nursing facilities Waiver of requirement to provide licensed nurses on a 24-hour basis. To the extent that a facility is unable to meet the requirements of paragraphs (a)(2) and (b)(1) of this section, a State may waive such requirements with respect to the facility if— (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; (2) The State determines that a waiver of the requirement will not endanger the health or safety of individuals staying in the facility; (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; (4) A waiver granted under the conditions listed in paragraph (e) of this section is subject to annual State review; (5) In granting or renewing a waiver, a facility may be required by the State to use other qualified, licensed personnel; (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 (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. The requirements for long-term care facilities also require that nursing facilities provide 24-hour licensed nursing, and provide an RN for 8 consecutive hours a day, 7 days a week, . The State may waive these requirements (either one, or both) if the following conditions are met: a. The facility demonstrates to the satisfaction of the State that it has made diligent efforts to recruit the appropriate personnel and is unable to do so. To determine this, the facility must provide evidence of attempting to recruit RNs and/or licensed nurses, which may include advertisements or postings on online job boards. The facility also must show evidence that the compensation they are offering is similar to the compensation offered by the other providers in the same general area (e.g., county). b. The State determines that a waiver will not endanger the health or safety of the residents in the facility. This is determined by the state agency completing a standard survey before granting the waiver. Based on their assessment, the survey team will determine if the time that a licensed nurse or RN would normally be onsite, but now will not, endanger the health or safety of the residents in the facility. For example, if residents need to receive narcotic pain medication or insulin which must be administered by a licensed nurse during the time that licensed nurses will not be available, the state should not grant a waiver. c. The State finds that an RN or physician is obligated to respond immediately to phone calls from the facility for periods when licensed nursing services are not available. This can be determined by interviewing the RN or physician and verifying that they will be available by phone during the time that an RN and/or licensed nurses will not be onsite. While considering granting a waiver, the state may require the facility to use other qualified, licensed personnel (per §483.35(e)(5)). This may include licensed respiratory therapist, licensed social workers, therapists, or other personnel the state deems necessary based on the needs of the residents. For facilities that were granted a waiver(s) the prior year: the facility must provide evidence that they notified the residents of the facility, or their guardians or their legal resident representatives (as appropriate), and members of their immediate families of the waiver. If a facility does not have evidence of this notice from the prior year, they may be granted a waiver(s) if they meet all other requirements, and as long as the facility provides evidence that the residents, their guardians/representatives, and immediate family members have been notified of the current waiver (e.g., within 30 days). If the facility does not provide this evidence, the waiver(s) is(are) rescinded. If a waiver is granted, the State must provide notice of the waiver to the State long-term care ombudsman and to the State protection and advocacy system for the mentally ill and intellectually disabled. The facility granted the waiver must notify residents of the facility (or responsible guardians) and members of their immediate families of the waiver. Any waivers granted are subject to annual review.