Legal Alert

PA Proposes Long-Awaited Changes to Regulations for Long-Term Care Nursing Facilities

by Mary Mullany, Jean C. Hemphill, and Eric Temmel
August 25, 2021

Summary

On July 31, 2021, the Pennsylvania Department of Health officially began its first overhaul of the Commonwealth’s long-term care nursing facility regulations since 1999. The regulatory changes will be implemented in five parts, the first of which aims to increase direct resident care requirements and provide consistency between state and federal law.

The Upshot

  • Pennsylvania has proposed the first of an expected five sets of changes to the Commonwealth’s nursing home regulations.
  • The first set requires facilities to provide additional direct care hours per day to residents and does not permit facilities to “front-load” such hours into any particular staff shift.
  • The Pennsylvania Department of Health expects the changes to impact 603 of the 689 licensed long-term care nursing facilities in the Commonwealth. The changes are expected to increase both the quality of care provided to residents and staffing (and other) costs borne by these facilities and the Pennsylvania Medical Assistance program.

The Bottom Line

Increased staffing and consistency between state and federal law is expected to improve resident activity levels, mortality rates, infection rates and other health conditions for approximately 67,500 residents of regulated facilities. However, these facilities must prepare to implement changes to staffing levels, update compliance plans and bear additional costs. More updates will follow as the Department of Health releases additional sets of proposed (and ultimately final) regulatory changes.

In late July, Governor Tom Wolf’s administration announced that it would begin releasing the first proposed revisions to Pennsylvania’s long-term care nursing facility regulations since 1999. On July 31, 2021, the Pennsylvania Department of Health (the Department) published the first of five proposed sets of regulations in the Pennsylvania Bulletin for public comment. The Department began this review process in 2017 and is still finalizing four additional sets, which are expected to include proposed revisions to change of ownership, staff development, staffing ratios and infection control regulations.

Generally, the first set of proposed regulatory revisions focuses on quality of care and regulatory consistency. The Department proposes to increase the number of direct care hours that long-term care nursing facilities must provide to residents on a per day basis and clarify competencies required for applicable provider personnel. The Department also proposes to update state regulations in order to provide consistency with federal requirements (particularly, those related to participation in the Medicare and Medicaid programs (at 42 C.F.R. Part 483, Subpart B)). 

Specifically, the Department proposes:

  • Deleting definitional distinctions between “profit and nonprofit” skilled or intermediate nursing care facilities in order to clarify the broad applicability of the regulations, as well as to provide consistency between the Commonwealth’s definitions and those used by the Centers for Medicare & Medicaid Services (CMS) in the Medicare and Medicaid programs (e.g., the State Operations Manual “Chapter 7 and Appendix PP―Guidance to Surveyors for Long-Term Care Facilities”;
  • Amending certain other definitions to coordinate the Commonwealth’s law with federal law; and
  • Increasing the minimum number of direct resident care hours from 2.7 to 4.1 per resident day (a 24-hour period) in an attempt to ensure staffing ratios sufficient to permit improved resident activity levels, lower mortality rates, lead to fewer infections, less antibiotic use, fewer pressure ulcers, fewer catheterized residents, improved eating patterns, improved pain levels and improved mental health of residents. 

Direct care hours cannot be “front-loaded” to one shift on any given day but must, rather, be spread over the shifts in a day. The Department believes that, while this direct resident care standard currently is not included in applicable federal law, there is impetus for states such as Pennsylvania to act on nursing staff ratios in long-term care facilities, due to heightened awareness of this issue during the COVID-19 crisis and the aging of Pennsylvania residents. 

The Department recognizes that an increase in the number of direct care hours will increase costs to the Commonwealth’s Medical Assistance (MA) program, some of which will be covered by federal matching funds, and some of which are likely to be borne by the regulated care facilities. The Department intends the increase in direct resident care hours to improve quality of life and safety for the approximately 67,500 residents in the impacted long-term care nursing facilities in the Commonwealth, and considers such benefits to outweigh additional costs to the MA program and regulated facilities. 

Comments to the proposed regulations may be submitted for 30 days following publication. The Department prefers to receive comments by electronic mail to RA-DHLTCRegs@pa.gov. Ballard Spahr’s Pennsylvania Health Care attorneys will continue to provide updates on the rollout of these proposed rules as they become available. 

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