SF 527 (LSB 1483XS (3) 91)

SENATE FILE 527

BY  CELSI

A BILL FOR

An Act relating to nursing facility staffing requirements.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:

    Section 1.  NEW SECTION.  135.35D  Nursing facilities —— staffing requirements.
   1.  For purposes of this section:
   a.  “Certified nurse aide training program” means the same as defined in section 135C.33.
   b.  “Nurse aide” means a person who successfully completed a certified nurse aide training program.
   c.  “Physician” means a person licensed under chapter 148.
   d.  “Registered nurse” means a person licensed under chapter 152 or 152E.
   e.  “Resident assessment” means a resident assessment conducted under 42 C.F.R. §483.20.
   f.  “Resident care plan” means the contract between a nursing facility and a resident that outlines how the nursing facility will provide care for the resident.
   2.  A nursing facility must have sufficient staff with the appropriate competencies and skill sets to provide nursing care and related services to ensure resident safety and attain the highest practicable physical, mental, and psychosocial well-being of each resident, as determined by resident assessments and individual resident care plans and considering the number, acuity, and diagnoses of the nursing facility’s residents.
   3.  a.  A nursing facility shall provide nursing care on a twenty-four-hour basis in accordance with each resident care plan by employing sufficient numbers of each of the following types of personnel:
   (1)  Licensed nurses.
   (2)  Other nursing personnel, including but not limited to nurse aides.
   b.  A nursing facility shall designate a licensed nurse to serve as a charge nurse on each tour of duty. The charge nurse shall assume leadership responsibility by overseeing nursing care and addressing immediate concerns within the nursing facility.
   c.  A nursing facility shall ensure that licensed nurses have the specific competencies and skill sets necessary to care for residents’ needs, as identified through resident assessments and described in each resident care plan.
   d.  For purposes of this subsection, “nursing care” includes but is not limited to assessing, evaluating, planning, and implementing resident care plans and responding to residents’ needs.
   4.  a.  A nursing facility must provide a minimum of three and forty-eight hundredths hours per resident per day for total nurse staffing, including but not limited to the following:
   (1)  A minimum of fifty-five hundredths hours per resident per day for registered nurses.
   (2)  A minimum of two and forty-five hundredths hours per resident per day for nurse aides.
   b.  Paragraph “a” shall not be construed as setting minimum staffing levels.
   5.  a.  A nursing facility shall have a registered nurse on site twenty-four hours per day that is available to provide direct resident care.
   b.  For any periods when the requirement in paragraph “a” is exempted under subsection 11, a nursing facility shall have a registered nurse, a physician assistant licensed under chapter 148C, or a physician available to respond immediately to telephone calls from the nursing facility.
   c.  A nursing facility shall designate a registered nurse to serve as the director of nursing on a full-time basis. The director of nursing may serve as a charge nurse only when the nursing facility has an average daily occupancy of sixty or fewer residents.
   6.  A nursing facility shall employ or contract with at least one physician that will evaluate each resident for wounds and infections on a weekly basis. The physician shall treat or recommend a treatment for each of a resident’s identified wounds and infections.
   7.  A nursing facility shall ensure that nurse aides are able to demonstrate competency in skills and techniques necessary to care for residents’ needs as identified through resident assessments and described in each resident care plan.
   8.  a.  Before employing an individual as a nurse aide, a nursing facility shall verify that the individual has met competency evaluation requirements unless any of the following apply:
   (1)  The individual is a full-time employee in a certified nurse aide training program.
   (2)  The individual can prove that the individual has recently completed a certified nurse aide training program and has not yet been included in the department’s nurse aide registry. A nursing facility shall ensure that the individual actually becomes included in the nurse aide registry.
   b.  Before employing an individual as a nurse aide, a nursing facility shall obtain information from every state registry established under section 1819(e)(2)(A) or 1919(e)(2)(A) of the federal Social Security Act that the nursing facility has reason to believe will include information on the individual.
   c.  If an individual has not provided nursing care or related services for monetary compensation for the most recent twenty-four consecutive months, the individual shall complete another certified nurse aide training program.
   d.  A nursing facility shall conduct a performance review of every nurse aide at least once every twelve months, and shall provide regular in-service education based on the outcome of these reviews. In-service training shall comply with the requirements of 42 C.F.R. §483.95(g).
   9.  a.  The department may waive the requirements of subsection 3, paragraph “a”, or subsection 4, paragraph “a”, subparagraph (1), or subsection 5, paragraph “a”, for a nursing facility that is unable to meet the requirements if all of the following apply:
   (1)  The nursing facility demonstrates that the nursing facility has been unable, despite diligent efforts, to recruit appropriate personnel. Diligent efforts shall include but not be limited to offering wages at the community prevailing rate for nursing facilities.
   (2)  The department determines that a waiver of the requirement will not endanger the health or safety of the nursing facility’s residents.
   (3)  The department determines that, for any periods in which licensed nursing care is not available, a registered nurse or a physician is obligated to respond immediately to telephone calls from the nursing facility.
   b.  A waiver granted under paragraph “a” is subject to annual department review.
   c.  In granting or renewing a waiver, the department may require a nursing facility to use other qualified, licensed personnel.
   d.  The department shall provide notice of a waiver granted under paragraph “a” to the office of long-term care ombudsman established under section 231.42, and a representative of the protection and advocacy agency designated by the state under section 135C.2.
   e.  A nursing facility that is granted a waiver under paragraph “a” shall notify its residents and the residents’ representatives of the waiver.
   10.  a.  The department may waive the requirement that a nursing facility provide the services of a registered nurse for more than forty hours per week, including a director of nursing specified in subsection 5, paragraph “c”, if the department finds all of the following:
   (1)  The nursing facility is located in a rural area and the supply of nursing facility services in the area is not sufficient to meet the needs of individuals residing in the area.
   (2)  The nursing facility has one full-time registered nurse who is regularly on duty at the facility forty hours per week.
   (3)  Any of the following apply to the nursing facility:
   (a)  The nursing facility only has patients whose physicians have indicated that they do not require the services of a registered nurse or a physician for a forty-eight-hour period.
   (b)  The nursing facility has made arrangements for a registered nurse or a physician to spend time at the nursing facility, as determined necessary by the physician, to provide necessary skilled nursing care on days when the regular full-time registered nurse is not on duty.
   b.  The department shall provide notice of a waiver granted under paragraph “a” to the office of long-term care ombudsman established under section 231.42, and a representative of the protection and advocacy agency designated by the state under section 135C.2.
   c.  A nursing facility that is granted a waiver under paragraph “a” shall notify its residents and the residents’ representatives of the waiver.
   d.  A waiver of the registered nurse requirement under paragraph “a” is subject to annual renewal by the department.
   11.  a.  The department may waive the requirements under subsection 4, paragraph “a”, or subsection 5, paragraph “a”, for a nursing facility if a hardship exists that prohibits the nursing facility from achieving or maintaining compliance and the nursing facility meets the following criteria:
   (1)  The nursing facility is located in an area where the supply of health care staff is not sufficient to meet area needs as evidenced by a provider-to-population ratio for the nursing workforce that is a minimum of twenty percent below the national average, as calculated by the federal centers for Medicare and Medicaid services. If the ratio of a nursing facility’s registered nurse and nurse aide population compared to the population of the surrounding geographic area is a minimum of twenty percent below the national average, the department may waive any of the following:
   (a)  The total nurse staffing requirements under subsection 4, paragraph “a”.
   (b)  The hours per resident per day requirement under subsection 4, paragraph “a”, subparagraph (1).
   (c)  The hours per resident per day requirement under subsection 4, paragraph “a”, subparagraph (2).
   (d)  Up to eight hours per day from the on-site registered nurse requirement under subsection 5, paragraph “a”.
   (2)  The nursing facility demonstrates that it has been unable, despite diligent efforts, to recruit and retain appropriate personnel. Evidence of diligent efforts include but are not limited to all of the following:
   (a)  Wages offered at the community prevailing rate for nursing facilities.
   (b)  Jobs listed in commonly used recruitment forums found online and other forums as appropriate.
   (c)  Documented job vacancies including the number and duration of the vacancies and documentation of offers made at least at the community prevailing rate for nursing facilities.
   (d)  Data on the average wages in the metropolitan statistical area in which the facility is located, and vacancies by industry as reported by the federal bureau of labor statistics or by the department of workforce development.
   (e)  Documentation of the nursing facility’s financial resources that shows the amount the nursing facility expends on nurse staffing relative to revenue.
   b.  A nursing facility granted a waiver under paragraph “a” shall do all of the following:
   (1)  Post in a prominent location in the nursing facility, and in a form and manner accessible and understandable to residents and the residents’ representatives, a notice of the nursing facility’s exemption status, the extent to which the nursing facility does not meet the minimum staffing requirements, and the time frame during which the exemption applies.
   (2)  Provide to each resident or the resident’s representative, and to each prospective resident or the prospective resident’s representative, a notice of the nursing facility’s exemption status, including the extent to which the nursing facility does not meet the staffing requirements, the time frame during which the exemption applies, and a statement reminding residents of their rights to contact advocacy and oversight entities as provided in the notice provided to them under 42 C.F.R. §483.10(g)(4).
   (3)  Send a copy of the notice under subparagraph (2) to a representative of the office of long-term care ombudsman established under section 231.42.
   c.  A nursing facility is not eligible for a waiver under this subsection if any of the following apply:
   (1)  The nursing facility is a special focus facility, pursuant to the special focus facility program established under sections 1819(f)(8) and 1919(f)(10) of the federal Social Security Act.
   (2)  The nursing facility received a citation for having widespread insufficient staffing or a pattern of insufficient staffing that resulted in actual harm.
   (3)  The nursing facility received a citation for immediate jeopardy due to insufficient staffing.
   (4)  The nursing facility failed to submit payroll-based journal data in accordance with 42 C.F.R. §483.70(p).
   d.  A nursing facility shall provide documentation when requested by the department while the department determines the nursing facility’s eligibility for a waiver under this subsection.
   e.  A waiver under this subsection shall be valid from the date the department grants the waiver until the date the nursing facility renews its license under this chapter. A nursing facility may apply to extend a waiver under this subsection each time the nursing facility applies to renew its license under this chapter.
   12.  a.  A nursing facility shall post the following data on a daily basis:
   (1)  The nursing facility’s name.
   (2)  The current date.
   (3)  The total number and the actual hours worked each shift by the following categories of licensed and unlicensed nursing staff directly responsible for resident care:
   (a)  Registered nurses.
   (b)  Nurse aides.
   (4)  The number of the nursing facility’s residents.
   b.  (1)  A nursing facility shall post the data specified in paragraph “a” on a daily basis at the beginning of each shift.
   (2)  Data must be posted in a clear and readable format and in a prominent place readily accessible to residents, staff, and visitors.
   c.  A nursing facility shall, upon oral or written request, make the data specified in paragraph “a” available to the public for review at a reasonable cost.
   d.  A nursing facility shall maintain the data specified in paragraph “a” for a minimum of eighteen months.
   13.  The department shall adopt rules pursuant to chapter 17A to implement this section.
EXPLANATION
The inclusion of this explanation does not constitute agreement with
the explanation’s substance by the members of the general assembly.
   This bill relates to nursing facility (facility) staffing requirements.
   The bill defines “certified nurse aide training program”, “nurse aide”, “physician”, “registered nurse”, “resident assessment”, and “resident care plan”.
   The bill requires facilities to have sufficient staff with the appropriate competencies and skill sets to provide nursing care and related services to ensure resident safety and attain the highest practicable physical, mental, and psychosocial well-being of each resident, as determined by resident assessments and individual resident care plans and considering the number, acuity, and diagnoses of the nursing facility’s residents.
   The bill requires facilities to provide nursing care on a 24-hour basis to all residents in accordance with each resident care plan. The bill details the types of employees and types of care a facility must provide.
   The bill requires facilities to provide a minimum of 3.48 hours per resident per day for total nurse staffing, including a minimum of 0.55 hours per resident per day for registered nurses and a minimum of 2.45 hours per resident per day for nurse aides. The minimum hours requirements are not to be construed as setting minimum staffing levels.
   The bill requires facilities to have a registered nurse on site 24 hours per day that is available to provide direct resident care. If the department of inspections, appeals, and licensing (DIAL) waives the requirement for an on-site registered nurse for a facility, the facility must have a registered nurse, physician assistant, or physician available to respond immediately to telephone calls from the facility.
   The bill requires facilities to designate a registered nurse to serve as the director of nursing on a full-time basis. The director of nursing may serve as a charge nurse only when the nursing facility has an average daily occupancy of 60 or fewer residents.
   The bill requires facilities to employ or contract with at least one physician that will evaluate each resident for wounds and infections on a weekly basis. The physician shall treat or recommend a treatment for each of a resident’s identified wounds and infections.
   The bill requires facilities to ensure that nurse aides are able to demonstrate competency in skills and techniques necessary to care for residents’ needs as identified through resident assessments and described in each resident care plan.
   Before employing an individual as a nurse aide, a facility must verify that the individual has met competency evaluation requirements unless the individual is a full-time employee in a training and competency evaluation program, or the individual can prove that they recently completed a certified nurse aide training program and have not yet been included in DIAL’s nurse aide registry. The facility must ensure that the individual actually becomes included in the nurse aide registry.
   Before employing an individual as a nurse aide, the bill requires a facility to obtain information from every state registry established under section 1819(e)(2)(A) or 1919(e)(2)(A) of the federal Social Security Act that the facility has reason to believe will include information on the individual.
   The bill requires an individual to complete another training and competency evaluation program if the individual has not provided nursing care or related services for monetary compensation for the most recent 24 consecutive months.
   The bill requires facilities to conduct a performance review of every nurse aide at least once every 12 months, and provide regular in-service education based on the outcome of these reviews. In-service training must comply with the requirements of 42 C.F.R. §483.95(g).
   The bill authorizes DIAL to waive the certain staffing and hours of care per resident per day requirements for a facility if the facility demonstrates certain conditions exist. The bill details a facility’s duties and DIAL’s duties related to such waivers. The bill details when a facility is not eligible for a waiver due to hardship. A facility may apply to extend a waiver due to hardship each time the facility renews its license. All other waivers are subject to DIAL’s annual review.
   The bill requires facilities to post data detailed in the bill on a daily basis at the beginning of each shift, in a clear and readable format, and in a prominent place readily accessible to residents, staff, and visitors. Facilities must, upon oral or written request, make the data available to the public for review at a reasonable cost. Facilities must maintain the posted data for a minimum of 18 months.
   The bill directs DIAL to adopt administrative rules to implement the bill.