Stricken language would be deleted from and underlined language would be added to present law.
Act 715 of the Regular Session
1 State of Arkansas
2 93rd General Assembly A Bill
3 Regular Session, 2021 HOUSE BILL 1776
4
5 By: Representatives Evans, F. Allen, Barker, Beaty Jr., Bentley, M. Berry, Boyd, Bryant, Cavenaugh,
6 Cloud, Clowney, Coleman, Dalby, M. Davis, Dotson, Eaves, K. Ferguson, C. Fite, V. Flowers, D. Garner,
7 Haak, Hawks, M. Hodges, Jean, Jett, L. Johnson, Ladyman, Lundstrum, Maddox, J. Mayberry,
8 McCollum, Miller, Pilkington, Ray, Richardson, B. Smith, Speaks, Underwood, Vaught, Warren, Wing,
9 Womack
10 By: Senators D. Wallace, B. Ballinger, Bledsoe, L. Chesterfield, A. Clark, B. Davis, J. Dismang, L. Eads,
11 Flippo, T. Garner, Gilmore, K. Hammer, J. Hendren, Hester, Hill, B. Johnson, D. Sullivan
12
13 For An Act To Be Entitled
14 AN ACT TO MODERNIZE AND STRENGTHEN NURSING FACILITY
15 STAFFING STANDARDS AND REPORTING REQUIREMENTS; TO
16 ELIMINATE OUTDATED AND EXTRANEOUS STATE REQUIREMENTS
17 THAT DUPLICATE HIGHLY PROSCRIPTIVE FEDERAL STAFFING
18 AND DATA REPORTING REQUIREMENTS THAT ALL MEDICARE AND
19 MEDICAID NURSING FACILITIES FOLLOW; TO PROVIDE FOR A
20 MINIMUM AVERAGE NUMBER OF DIRECT CARE HOURS PER
21 RESIDENT PER DAY; AND FOR OTHER PURPOSES.
22
23
24 Subtitle
25 TO MODERNIZE AND STRENGTHEN NURSING
26 FACILITY STAFFING STANDARDS AND REPORTING
27 REQUIREMENTS.
28
29
30 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF ARKANSAS:
31
32 SECTION 1. DO NOT CODIFY. Legislative findings and intent.
33 (a) The General Assembly finds that:
34 (1) Every state-licensed nursing facility certified to
35 participate in the federal Medicare program, the Arkansas Medicaid Program,
36 or both, must adhere to comprehensive, highly proscriptive federal
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1 regulations, which are enforced by both the Centers for Medicare and Medicaid
2 Services and the Department of Human Services in its role under federal law
3 as the state survey agency;
4 (2) Except for one (1) private pay facility that is subject to
5 state-level regulation only, every licensed nursing facility in this state is
6 Medicare-certified, and all but two (2) are dually certified in the federal
7 Medicare program and the Arkansas Medicaid Program;
8 (3) Federal requirements include standards, safeguards, and
9 detailed, transparent data reporting on direct care staffing, with modern
10 definitions of direct care services and staffing;
11 (4) Under federal law, Medicare and Medicaid nursing facilities
12 are required to provide each resident with necessary direct care services
13 based on individual assessments and individual, person-centered care plans,
14 regardless of any requirements on facility staffing levels; and
15 (5) Current Arkansas laws and Department of Human Services rules
16 on nursing facility staffing practices and staff reporting, which were first
17 adopted decades ago:
18 (A) Are outdated and extraneous;
19 (B) Duplicate highly proscriptive federal regulations all
20 nursing facilities must meet to participate in the federal Medicare program
21 or the Arkansas Medicaid Program;
22 (C) Unnecessarily restrict the use of modern staffing
23 practices permitted under federal regulations; and
24 (D) Fail to recognize the full range of professions
25 available to care for the complex skilled needs of elderly nursing facility
26 residents, including medication assistants, nurse practitioners, licensed
27 therapists, physician assistants, and infection preventionists.
28 (b) It is the intent of the General Assembly to:
29 (1) Remove the outdated, extraneous, and duplicative state laws;
30 (2) Remove the unnecessarily restrictions regarding the use of
31 modern staffing practices permitted under federal regulations; and
32 (3) Recognize the full range of professions available to care
33 for the complex skilled needs of elderly nursing facility residents.
34
35 SECTION 2. Arkansas Code 20-10-211 is repealed.
36 20-10-211. Facilities Regulation of staffing.
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1 (a) The agency responsible for licensure and certification of long-
2 term care facilities shall promulgate appropriate rules prescribing minimum
3 staffing requirements for all long-term care facilities in the state. The
4 agency shall conform to the requirements of the Arkansas Administrative
5 Procedure Act, 25-15-201 et seq., and other appropriate state laws in
6 promulgating and placing rules into effect.
7 (b) Failure to comply with the rules promulgated by the appropriate
8 agency pursuant to subsection (a) of this section shall be cause for
9 revocation or suspension of the license or certification of any long-term
10 care facility.
11 (c)(1) This section shall apply only to licensed nursing homes.
12 (2) This section shall not be applicable to any facility of the
13 Division of Developmental Disabilities Services or to any other facility
14 operated by the State of Arkansas or any agency of the state.
15
16 SECTION 3. Arkansas Code 20-10-1401 and 20-10-1402 are amended to
17 read as follows:
18 20-10-1401. Definitions.
19 As used in this subchapter:
20 (1) Day shift means the period of 7:00 a.m. to 3:00 p.m.;
21 (2)(A) Direct-care staff means any nurse aide or licensed
22 nurse who provides direct, hands-on care to nursing facility residents.
23 (B) Direct-care staff shall not include:
24 (i) Therapy personnel or personnel listed in 20-
25 10-1404; or
26 (ii) Medication assistive persons as defined in
27 17-87-701;
28 (3) Evening shift means the period of 3:00 p.m. to 11:00 p.m.;
29 (4) Midnight census means the number of patients occupying
30 nursing home beds in a nursing facility at midnight of each day;
31 (5) Night shift means the period of 11:00 p.m. to 7:00 a.m.;
32 (6) Nurse aide means any person who meets the requirements
33 according to regulations adopted pursuant to 42 C.F.R. 483.75(e), as it
34 existed on January 1, 2005; and
35 (7)(A) Nursing facility means any building, structure, agency,
36 institution, or other place for the reception, accommodation, board, care, or
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1 treatment of more than three (3) unrelated individuals who, because of
2 physical or mental infirmity, are unable to sufficiently or properly care for
3 themselves, and for which reception, accommodation, board, care, and
4 treatment a charge is made.
5 (B) However, nursing facility shall not include:
6 (i) The offices of private physicians and surgeons;
7 (ii) Residential care facilities;
8 (iii) Assisted living facilities;
9 (iv) Intermediate care facilities for individuals
10 with developmental disabilities;
11 (v) Hospitals;
12 (vi) Institutions operated by the United States
13 Government or licensed by the Division of Developmental Disabilities Services
14 of the Department of Human Services; or
15 (vii) Any facility that is conducted by and for
16 those who rely exclusively upon treatment by prayer alone for healing in
17 accordance with the tenets or practices of any recognized religious
18 denomination.
19 (1) "Average Direct Care Hours Per Resident Day" means the total
20 number of hours of direct care services provided by direct care staff in a
21 month, divided by the number of calendar days in that month and the
22 facility's average daily resident census for that month;
23 (2) "Certified nursing facility" means a nursing facility
24 licensed by the Department of Human Services that is certified to participate
25 in the federal Medicare program as a skilled nursing facility or in the
26 Arkansas Medicaid Program as a nursing facility, or both;
27 (3)(A) "Direct care services" means:
28 (i) Nursing and nursing-related services;
29 (ii) Clinical, diagnostic, therapeutic, and
30 rehabilitative services;
31 (iii) Physical, occupational, respiratory, and
32 speech therapy services;
33 (iv) Delegated physician tasks;
34 (v) Behavioral health services;
35 (vi) Care management, care coordination, and care
36 transition activities;
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1 (vii) Medication administration;
2 (viii) Assistance with activities of daily living;
3 (ix) Assessment, evaluation, planning, and
4 implementation of care plans;
5 (x) Coordination and consultation with residents'
6 physicians and other healthcare providers; and
7 (xi) Other services and supports provided for
8 nursing facility residents in response to individual resident needs.
9 (B) "Direct care services" does not include food
10 preparation, laundry, housekeeping, and other maintenance of a nursing
11 facility's physical environment;
12 (4) "Direct care staff" means a person who provides any direct
13 care services to a nursing facility resident through interpersonal contact
14 with residents or resident care management, including without limitation:
15 (A) A licensed nurse;
16 (B) A nurse aide;
17 (C) A medication assistant;
18 (D) A physician;
19 (E) A physician assistant;
20 (F) A licensed physical or occupational therapist or
21 licensed therapy assistant;
22 (G) A registered respiratory therapist;
23 (H) A licensed speech-language pathologist;
24 (I) An infection preventionist; and
25 (J) Other licensed or certified healthcare professionals;
26 (5) "Federal direct care data system" means the national online
27 data reporting system operated by the Centers for Medicare and Medicaid
28 Services and used by nursing facilities participating in the federal Medicare
29 program or the Arkansas Medicaid Program, or both, to electronically report
30 detailed and standardized direct care and other staffing information;
31 (6) "Licensed nurse" means any registered nurse, licensed
32 practical nurse, advanced practice registered nurse, or registered nurse
33 practitioner;
34 (7) "Medicare and Medicaid requirements of participation" means
35 the federal requirements established by the Centers for Medicare and Medicaid
36 Services under 42 U.S.C. 1320a-7j, 42 U.S.C. 1395i-3, and 42 U.S.C. 1396r, as
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1 existing on January 1, 2021, that a licensed nursing facility is required to
2 follow to be certified as compliant with and participate in the federal
3 Medicare program as a skilled nursing facility or the Arkansas Medicaid
4 Program as a nursing facility, or both;
5 (8) "Medication assistant" means any medication assistive person
6 who is qualified and certified under 17-87-704;
7 (9) "Nurse aide" means any certified nurse aide or nurse aide in
8 training consistent with federal and state nurse aide proficiency, training,
9 education, and use requirements;
10 (10) "Nursing facility" means any entity licensed as a nursing
11 facility by the department;
12 (11) "Nursing staff" means any licensed nurses, nurse aides, or
13 medication assistants who are employed or contracted by a nursing facility;
14 and
15 (12) "Private pay-only nursing facility" means a nursing
16 facility licensed by the department that is not certified to participate in
17 the federal Medicare program as a skilled nursing facility or in the Arkansas
18 Medicaid Program as a nursing facility.
19
20 20-10-1402. Staffing standards.
21 (a) The Department of Human Services shall not issue or renew a
22 license of a nursing facility unless that facility employs the direct-care
23 staff needed to provide continuous twenty-four-hour nursing care and service
24 to meet the needs of each resident of the nursing facility and the staffing
25 standards required by all state rules and federal regulations.
26 (b)(1) Except for nursing facilities that the Office of Long-Term Care
27 designates or certifies as Eden Alternative nursing facilities or Green House
28 Project nursing facilities, the staffing standard required by this subchapter
29 shall be the minimum number of direct-care staff required by nursing
30 facilities and shall be adjusted upward to meet the care needs of residents.
31 (2)(A) The office shall promulgate staffing standards for
32 nursing facilities that the office designates or certifies as Eden
33 Alternative nursing facilities or Green House Project nursing facilities.
34 (B) The department may develop a reimbursement methodology
35 or amend the reimbursement methodology in existence as of July 31, 2007, to
36 provide payment for staff that provides services or care to residents in the
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1 designated or certified Eden Alternative nursing facilities or Green House
2 Project nursing facilities.
3 (c) If a facility varies shift hours from the shift hours listed in
4 20-10-1401, the facility shall meet the staffing requirements for the shift
5 listed in 20-10-1403.
6 (a) As a condition of licensure by the Department of Human Services, a
7 nursing facility, except a private pay-only only nursing facility, shall:
8 (1)(A) Be certified to participate in the federal Medicare
9 program as a skilled nursing facility or in the Arkansas Medicaid Program as
10 a nursing facility, or in both.
11 (B) A certified nursing facility is subject to the
12 Medicare and Medicaid requirements of participation, including without
13 limitation federal requirements related to nursing and other direct care
14 staffing, directors of nursing, daily information posting, and staffing data
15 reporting through the federal direct care data system; and
16 (2) Provide each month direct care services by direct care staff
17 equivalent to at least three and thirty-six hundredths (3.36) Average Direct
18 Care Hours Per Resident Day.
19 (b)(1) On or before the fifteenth day of each month, a certified
20 nursing facility shall report electronically to the department the certified
21 nursing facility's actual Average Direct Care Hours Per Resident Day for the
22 prior month.
23 (2) Hours used in determining actual Average Direct Care Hours
24 Per Resident Day for each month shall be consistent with the certified
25 nursing facility's final staffing data submission to the federal direct care
26 data system for the applicable quarter and based on all direct care services
27 labor categories and all direct care staff job codes.
28 (3) When necessary to correct monthly report data following
29 quarterly data validation and based on the final staffing data reported in
30 the federal direct care data system for the applicable quarter, a certified
31 nursing facility shall promptly file an amended monthly report with the
32 department.
33 (4) In the event of a public health emergency, natural disaster,
34 other major emergency, or severe labor shortage, the department may
35 temporarily waive the Average Direct Care Hours Per Resident Day requirements
36 for any certified nursing facility or all certified nursing facilities in a
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