Waivers of Nurse Staffing Requirements for Dually

7014.1.3 - Waivers of Nurse Staffing Requirements for Dually Participating Facilities (SNF/NFs) (Rev. 244; Issued: 06-26-26; Effective: 06-26-26; Implementation: 06-26-26) If a facility dually participates in both the Medicare and Medicaid programs, it is subject to the waiver criteria for SNFs and NFs. Because having a licensed nurse 24 hours each day cannot be waived for SNFs, a SNF/NF may only have the 8 consecutive hours a day, 7 days a week requirement waived. However, the facility must still have an RN 40 hours a week (i.e., the waiver only permits the facility to not have an RN for a period of two days (48 hours). For SNF/NFs, the waiver is granted by the CMS Location. To grant a waiver, the state obtains the following information, which is then forwarded to the CMS Location: a) The facility is located in a rural area and the supply of skilled nursing facility services is not sufficient 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. b) The facility has one full-time registered nurse regularly on duty 40 hours a week. This may be the same individual or part-time individuals. This nurse may or may not be the Director of Nursing and may perform some Director of Nursing and some clinical duties if the facility so desires. The facility must provide evidence of this to a surveyor, which may be in the form of providing timesheet/card or salary information showing an RN onsite for 40 hours a week (a schedule of when an RN is supposed to work, is not acceptable). c) The facility meets either of the following conditions: i) The facility has residents whose physicians have indicated, through admission notes or physicians’ orders, that the residents do not need RN or physician care for a 48-hour period. This is determined by reviewing the records of the residents sampled during the survey, and each resident’s record reviewed must include this information. ii) A physician or RN will spend the necessary time at the facility to provide the care that residents need during the days that an RN is not on duty. This can be determined by interviewing the RN or physician and asking them when they will be in the facility during the days when an RN is not there 8 hours. d) 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 RN(s), 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 other providers in the same general area (e.g., county). e) 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 completing a survey before a waiver is granted. Based on their assessment, the survey team will determine if the time that an RN would normally be onsite, but now will not, endanger the health or safety of the residents in the facility. For example, if residents will need the services of an RN during the time that an RN will not be available, the state should not forward this facility’s information to the CMS Location for a waiver. Those services that must be performed by an RN include components of the nursing process (assessment, diagnosis, outcomes identification, planning, implementation, and evaluation). Examples include the assessment of a resident after a fall with injury, the subsequent development of a baseline care plan for the newly admitted resident, or the assessment and maintenance of an intravenous access that does not terminate in the arm (e.g., PICC or Central Venous lines). While considering forwarding a facility to the CMS Location for a waiver, the state may require the facility to use other qualified, licensed personnel (per §483.35(e)(5)). This may include 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 guardians and their resident legal representatives (as appropriate), and members of their immediate families of the waiver. If a facility does not have evidence of this, they may be granted a waiver(s) if they meet the 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 is rescinded. The state forwards the above information to the CMS Location for review, and the CMS Location grants the waiver after confirming all of the requirements are met. If a waiver is granted, the CMS Location 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 such a waiver must notify residents of the facility (or responsible guardians) and members of their immediate families of the waiver. A waiver of the RN requirement is subject to annual renewal by the Secretary.