Legal Alert

Pennsylvania Proposes Final Set of Regulatory Changes for Long-Term Care Nursing Facilities

by Mary J. Mullany and Eric K. Temmel
June 8, 2022

Summary

The Pennsylvania Department of Health last year began overhauling the Commonwealth’s long-term care nursing facility regulations. On May 28, 2022, the Department of Health published the fourth and final set of proposed regulations.

The Upshot

  • The proposed regulations include changes to provisions governing residents’ rights and health care services offered by facilities.
  • The proposed regulations represent the final of four sets of regulatory changes. Following review of stakeholder feedback, the Department of Health will release the corresponding four final-form rulemaking packages.

The Bottom Line

The fourth set of proposed regulations focuses on requirements specific to residents’ rights and the actual health care services offered by facilities. More fully, the proposed regulations relate to numerous substantive aspects of resident care, including: admission and discharge policies; physician services; oral and telephone orders; clinical records; resident care plans and policies; and nursing, dental, and social services.

Ballard Spahr’s articles regarding the previous sets of proposed regulations are available as follows:

Pennsylvania Proposes Third Set of Ongoing Regulatory Changes for Long-Term Care Nursing Facilities (regarding: facility licensure and change in ownership; transparency about facility ownership; and prevention and preparedness requirements for disease and disaster).

Pennsylvania Proposes Second Set of Ongoing Regulatory Changes for Long-Term Care Nursing Facilities (regarding: facility closure; applicability of the Life Safety Code; and standards for physical environment and equipment.)

PA Proposes Long-Awaited Changes to Regulations for Long-Term Care Nursing Facilities (regarding: on quality of care; regulatory consistency; and direct care hours).

Last year, Governor Wolf’s administration began the first overhaul to Pennsylvania’s long-term care nursing facility regulations since 1999. On May 28, 2022, the Pennsylvania Department of Health (the Department) published the fourth and final set of proposed regulations in the Pennsylvania Bulletin. The Department will schedule a meeting with stakeholders to discuss the third and fourth sets of proposed regulatory changes before proceeding with final-form rulemaking.

The final set of proposed regulations focuses on specific standards for resident care, as well as residents’ rights. Specifically, the Department proposes to:

  • Continue eliminating state regulations that are duplicative of or in conflict with federal law;
  • Increase facility staffing requirements related to nursing (RN, LPN and nurse aides), including requiring: one nurse aide per 10 residents during the day and evening, one nurse aide per 15 residents overnight; a minimum of two RNs and one LPN during the day, one RN and one LPN during the evening, and one RN overnight, per 60 residents;
  • Require all facilities (rather than only facilities with over 120 residents) to utilize a full-time social worker;
  • Require facilities to maintain nine enumerated types of documentation—such as criminal background check, licensure or certification, and performance evaluation—in all personnel records;
  • Require certain trainings specific to restorative nursing and disaster preparedness;
  • Require certain admissions policies beyond those required under federal law (including policies governing introductions to staff members, orientation related to essential services and key personnel, descriptions of nursing shifts and mealtimes, and discussion of a resident’s customary routines and preferences);
  • Broaden relevant provisions to relate to a “resident representative,” rather than the more restrictive “power of attorney” currently utilized;
  • Clarify a resident’s right to care free from discrimination; and
  • Require advance posting of menus for resident review.

Many of the proposed regulations relate to the ongoing effort by the Department to synchronize state requirements with federal counterparts. A number of other proposed changes update terms that the Department no longer believes reflect modern nomenclature, such as “nursing home.”  With regard to staffing, the Department highlights that the current proposed regulatory framework will require at least four RNs and two LPNs per day, per 60 residents, with nurse aides providing the remainder of care necessary to meet the proposed requirement of 4.1 hours of direct care per day. 

The Department specifically notes that federal law does not include the proposed minimum direct care hours requirement, but that staffing levels sufficient to meet those recommended by Centers for Medicare and Medicaid Services would require six RNs and four LPNs per day, per 60 residents. Nonetheless, the Department recognizes that the proposed changes constitute an increase to current nursing staff ratios. Increased RN and LPN staffing requirements, combined with the increased direct care requirements, will add approximately $53 million in annual expenses to Pennsylvania’s 20 county-owned facilities, approximately 84.5 percent of which will be borne by the Commonwealth’s Medical Assistance Program (to be covered, primarily, by federal match funds).

The Department estimates an increase of approximately $641 million in nursing staff expenses for the remaining 594 privately owned facilities, approximately 76 percent of which will be borne by Medical Assistance (with, again, the majority to be covered by federal match funds).  The Department estimates increased costs associated with all other changes to be much less substantial. The Department expects these changes to improve the quality of care delivered to facility residents, increase resident safety in general, and minimize administrative and procedural burden associated with compliance for facilities regulated by both state and federal law.

Comments to the proposed regulations may be submitted within 30 days of publication. The Department prefers to receive comments by email addressed to RA-DHLTCRegs@pa.gov

Note: Persons without access to email may contact Lori Gutierrez, Director, Office of Policy, 625 Forster Street, Room 814, Health and Welfare Building, Harrisburg, PA 17120, (717) 317-5426. Persons with a disability requiring alternative formatting may use V/TT (717) 783-6514 or contact the Pennsylvania Hamilton Relay Service at (800) 654-5984 (TT). Submissions should identify “proposed rulemaking 10-224 (Long-term care nursing facilities, Proposed Rulemaking 4).”

Attorneys in Ballard’s Health Care and Government Relations Practice Groups are available to assist in preparing any comments that a client may want to make to the proposed regulations. Please contact us for more information.

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