Pennsylvania Releases Final-Form Regulations for Long-Term Care Nursing Facilities

Newly released final regulations, published by the Pennsylvania Department of Health (the Department) on December 24, 2022, constitute the first overhaul to Pennsylvania’s long-term care nursing facility regulations since 1999.

The updated regulations make significant changes to nursing home staffing level requirements, and more closely align the state and the federal regulations. With limited exceptions, the new regulations take effect on July 1, 2023.

The substantive changes impact the scope and definitions of the regulations. Among other things, they affect facility operations, and physical requirements; management, change of ownership, health and safety; residents’ rights; health care services; and staff duties, training, and qualifications.

Ballard Spahr previously published articles regarding all of the sets of proposed regulations:

Pennsylvania Proposes Final Set of Regulatory Changes for Long-Term Care Nursing Facilities (regarding residents’ rights and facility health care services).

Pennsylvania Proposes Third Set of Ongoing Regulatory Changes for Long-Term Care Nursing Facilities (regarding facility licensure and change in ownership, financial and ownership transparency, 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).

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

Following public hearings and reviews of public comments to all proposed regulations, the Department published four sets of final regulations in the Pennsylvania Bulletin that can be accessed here, here, here and here.

The Department received feedback from hundreds of commentators, the vast majority of whom responded to the first set of proposed regulations. As a result, the final regulations diverge from the proposed regulations in a number of aspects. Notable changes include:

• deleting certain references to Medicare or Medical Assistance, to clarify the applicability of existing federal requirements (under 42 C.F.R. Part 483) to all Pennsylvania long-term care nursing facilities (including private-pay);
• deleting proposed incorporation by reference of the federal Centers for Medicare & Medicaid Services State Operations Manual’s guidance related to surveying long-term care facilities;
• retaining a number of definitions, via incorporating by reference to the relevant definitions under federal law, rather than deleting defined terms;
• adding and clarifying certain aspects of required plans for facility closure, increasing the required Departmental notice period applicable to such plans, and providing for written resident, employee, Office of the State Long-Term Care Ombudsman, and Department of Human Services notice regarding same;
• revising the process for approving facility use of previously unoccupied space;
• requiring annual submission of ownership financial reports in order to permit ongoing (rather than preliminary) assessment of facilities’ financial viability;
• requiring prospective licensees to notify facility residents of a proposed change in ownership;
• delineating the types of enforcement actions available to the Department related to these regulations and the underlying statutes;
• requiring long-term care nursing facilities to maintain written policies and procedures related to the disposition of medication; and
• requiring, effective July 1, 2023, that each facility have (at least) one nurse aide per 12 residents during the day and evening, and one nurse aide per 20 residents overnight. Effective July 1, 2024, facilities will be required to have one nurse aide per 10 residents during the day, one nurse aide per 11 residents during the evening, and one nurse aide per 15 residents overnight. Effective July 1, 2023, facilities must utilize (at minimum) one LPN per 25 residents during the day, 30 residents during the evening, and 40 residents overnight. Effective July 1, 2023, at least one RN is required per 250 residents at all times.

One final update is perhaps the most significant. The Department originally proposed a requirement that total hours of direct resident nursing care provided “during each shift,” “in each 24-hour period,” totaled for the entire facility, be a minimum of 4.1 hours (an increase from the 2.7 hours required under current law).

The provisions in the final regulations are less stringent and are subject to gradual implementation. Now, effective July 1, 2023, facilities must provide 2.87 hours, totaled for the entire facility, of direct resident nursing care to each resident in each 24-hour period. Effective July 1, 2024, this hour requirement again increases, but only to 3.2 hours. The proposed “during each shift” language has been omitted from the final regulations entirely, though the Department believes that its proposed addition was “confusing,” and therefore may never have intended such a substantive increase (potentially read as requiring 12.3 hours per day over three shifts).

Nearly all other provisions remain unchanged from those originally proposed. Among other things, the regulatory overhaul:

• eliminates, amends, and renumbers state regulations that are duplicative of, or in conflict with, federal law;
• increases the minimum number of direct resident care hours from 2.7 hours to 3.2 hours per resident per day by July 1, 2024;
• increases facility staffing requirements for RNs, LPNs, and nurse aides;
• requires implementation of certain admissions processes and staff trainings beyond those required under federal law;
• amends regulations related to the construction, alteration, and renovation of facilities;
• requires ongoing disclosure of contact and financial information for owners and proposed owners of facilities, land and buildings; and
• clarifies residents’ rights to ownership notifications, care free from discrimination, availability of menus, and other rights pertaining to quality of life.

The release of the final regulations concludes this extended rulemaking process and provides a new regulatory landscape applicable to the nearly 700 long-term care nursing facilities operating in Pennsylvania.  Ballard Spahr attorneys in the Health Care and Government Relations Groups will continue to monitor the implementation of the new regulations and are available to assist with any related questions. Please contact us for more information. 

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