2022 -- H 8003

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LC005261

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2022

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A N   A C T

RELATING TO HEALTH AND SAFETY -- RIGHTS OF NURSING HOME PATIENTS--

STAFFING

     Introduced By: Representatives C Lima, Cardillo, and Serpa

     Date Introduced: March 18, 2022

     Referred To: House Finance

     It is enacted by the General Assembly as follows:

     SECTION 1. Sections 23-17.5-32, 23-17.5-33 and 23-17.5-34 of the General Laws in

Chapter 23-17.5 entitled "Rights of Nursing Home Patients" are hereby amended to read as follows:

     23-17.5-32. Minimum staffing levels.

     (a) Each facility shall have the necessary nursing service personnel (licensed and non-

licensed) in sufficient numbers on a twenty-four (24) hour basis, to assess the needs of residents,

to develop and implement resident care plans, to provide direct resident care services, and to

perform other related activities to maintain the health, safety, and welfare of residents. The facility

shall have a registered nurse on the premises twenty-four (24) hours a day.

     (b) To the extent that a facility is unable to meet the requirements of a registered nurse on

the premise for twenty-four (24) hours a day as stated in subsection (a) of this section, the licensing

agency may waive such requirements with respect to the facility and cede to the federal requirement

if:

     (1) The facility demonstrates, to the satisfaction of the licensing agency, that the facility

has been unable, despite diligent efforts (including offering wages at the community prevailing rate

for nursing facilities), to recruit appropriate personnel;

     (2) The licensing agency determines that a waiver of the requirement will not endanger the

health or safety of individuals staying in the facility;

     (3) The licensing agency finds that, for any periods in which licensed nursing services are

not available, a registered nurse or a physician, is obligated to respond immediately to telephone

calls from the facility;

     (b)(c) For purposes of this section, the following definitions shall apply:

     (1) "Direct caregiver" means a person who receives monetary compensation as an

employee of the nursing facility or a subcontractor as a registered nurse, a registered nurse with

administrative duties, a licensed practical nurse, a licensed practical nurses with administrative

duties, a medication technician, who is also a certified nurse assistant, a nurse aide in training, a

certified nurse assistant, a licensed physical therapist, a licensed occupational therapist, a licensed

speech-language pathologist, a mental health worker who is also a certified nurse assistant, or a

physical therapist assistant, or an occupational therapy assistant.

     (2) "Hours of direct nursing care" means the actual hours of work performed per patient

day by a direct caregiver.

     (c)(i) Commencing on January 1, 2022 2023, nursing facilities shall provide a quarterly

minimum average of three and fifty-eight hundredths (3.58) hours of direct nursing care per

resident, per day, of which at least two and forty-four hundredths (2.44) hours shall be provided by

certified nurse assistants and medication technicians who are also a certified nurse assistant.

     (ii) Commencing on January 1, 2023 2024, nursing facilities shall provide a quarterly

minimum of three and eighty-one hundredths (3.81) hours of direct nursing care per resident, per

day, of which at least two and six-tenths (2.6) hours shall be provided by certified nurse assistants

and medication technicians who are also a certified nurse assistant.

     (d) Director of nursing hours and nursing staff hours spent on administrative duties or non-

direct caregiving tasks are excluded and may not be counted toward compliance with the minimum

staffing hours requirement in this section.

     (e) The minimum hours of direct nursing care requirements shall be minimum standards

only. Nursing facilities shall employ and schedule additional staff as needed to ensure quality

resident care based on the needs of individual residents and to ensure compliance with all relevant

state and federal staffing requirements.

     (f) The department shall promulgate rules and regulations to amend the Rhode Island code

of regulations in consultation with stakeholders to implement these minimum staffing requirements

on or before October 15, 2021 2022.

     (g) On or before January 1, 2024 2025, and every five (5) years thereafter, the department

shall consult with consumers, consumer advocates, recognized collective bargaining agents, and

providers to determine the sufficiency of the staffing standards provided in this section and may

promulgate rules and regulations to increase the minimum staffing ratios to adequate levels.

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     23-17.5-33. Minimum staffing level compliance and enforcement program.

     (a) Compliance determination.

     (1) The department shall submit proposed rules and regulations for adoption by October

15, 2021 October 1, 2022, establishing a system for determining compliance with minimum staffing

requirements set forth in § 23-17.5-32.

     (2) Compliance shall be determined quarterly by comparing the quarterly average number

of hours provided per resident, per day using the Centers for Medicare and Medicaid Services'

payroll-based journal and the facility's daily census, as self- reported by the facility to the

department on a quarterly basis.

     (3) The department shall use the quarterly payroll-based journal and the self- reported

census to calculate the quarterly average number of hours provided per resident, per day and

compare this ratio to the minimum staffing standards required under § 23-17.5-32. Discrepancies

between job titles contained in § 23-17.5-32 and the payroll-based journal shall be addressed by

rules and regulations.

     (b) Monetary penalties.

     (1) The department shall submit proposed rules and regulations for adoption on or before

October 15, 2021 October 1, 2022, implementing monetary penalty provisions for facilities not in

compliance with minimum staffing requirements set forth in § 23-17.5-32.

     (2) Monetary penalties shall be imposed quarterly and shall be based on the latest quarter

for which the department has data.

     (3) No monetary penalty may be issued for noncompliance with the increase in the standard

set forth in § 23-17.5-32(c)(ii) from January 1, 2023 2024, to March 31, 2023 2024. If a facility is

found to be noncompliant with the increase in the standard during the period that extends from

January 1, 2023 2024, to March 31, 2023 2024, the department shall provide a written notice

identifying the staffing deficiencies and require the facility to provide a sufficiently detailed

correction plan to meet the statutory minimum staffing levels.

     (4) Monetary penalties shall be established based on a formula that calculates on a daily

basis the cost of wages and benefits for the missing staffing hours.

     (5) All notices of noncompliance shall include the computations used to determine

noncompliance and establishing the variance between minimum staffing ratios and the department's

computations.

     (6) The penalty for the first offense shall be two hundred percent (200%) of the cost of

wages and benefits for the missing staffing hours. The penalty shall increase to two hundred fifty

percent (250%) of the cost of wages and benefits for the missing staffing hours for the second

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offense and three hundred percent (300%) of the cost of wages and benefits for the missing staffing

hours for the third and all subsequent offenses.

     (7) For facilities that have an offense in three (3) consecutive quarters, EOHHS shall may

deny any further Medicaid Assistance payments with respect to all individuals entitled to benefits

who are admitted to the facility on or after January 1, 2022 2023, or shall may freeze admissions

of new residents.

     (c)(1) The penalty shall be imposed regardless of whether the facility has committed other

violations of this chapter during the same period that the staffing offense occurred.

     (2) The penalty may not be waived except as provided in subsection (c)(3) of this section,

but the department shall have the discretion to determine the gravity of the violation in situations

where there is no more than a ten percent (10%) deviation from the staffing requirements and make

appropriate adjustments to the penalty.

     (3) The department is granted discretion to waive the penalty when unforeseen

circumstances have occurred that resulted in call-offs of scheduled staff. This provision shall be

applied no more than two (2) times per calendar year.

     (4) Nothing in this section diminishes a facility's right to appeal pursuant to the provisions

of chapter 35 of title 42 ("administrative procedures").

     (d)(1) Pursuant to rules and regulations established by the department, funds that are

received from financial penalties shall be used for technical assistance or specialized direct care

staff training.

     (2) The assessment of a penalty does not supplant the state's investigation process or

issuance of deficiencies or citations under this title.

     (3) Waiver. A nursing facility may seek from the department of health a waiver of the

minimum direct care staffing requirements required hereunder. In making a determination on the

waiver request, the director's determination must include that the waiver will not endanger the

health or safety of residents of the facility, and shall be based on one or more of the following:

     (i) The acuity levels of residents and how stable those levels are based on the case mix of

residents;

     (ii) Documented evidence of the facility’s inability to meet minimum staffing

requirements, despite best efforts, such as offering wages at competitive rates for nursing facility

staff in the community;

     (iii) The quality performance of the nursing facility, as evidenced by a four (4) or five (5)

star overall rating from the Centers for Medicare or Medicaid Services (“CMS”), or a four (4) or

five (5) star overall rating in the areas of quality or staffing, or consistent survey performance with

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no deficiencies above F level.

     (4) Waivers shall not be unreasonably withheld, and may be granted for periods up to one

year, after which a renewal must be requested by the facility. The department of health may seek

input from the department of labor and training in terms of issues of labor availability in connection

with any waiver request under this section.

     (3)(5) A notice of noncompliance, whether or not the penalty is waived, and the penalty

assessment shall be prominently posted in the nursing facility and included on the department's

website.

     23-17.5-34. Nursing staff posting requirements.

     (a) Each nursing facility shall post its daily direct care nurse staff levels by shift in a public

place within the nursing facility that is readily accessible to and visible by residents, employees,

and visitors. The posting shall be accurate to the actual number of direct care nursing staff on duty

for each shift per day. The posting shall be in a format prescribed by the director, to include:

     (1) The number of registered nurses, licensed practical nurses, certified nursing assistants,

medication technicians, licensed physical therapists, licensed occupational therapists, licensed

speech-language pathologists, mental health workers who are also certified nurse assistants, and

physical therapist assistants;

     (2) The number of temporary, outside agency nursing staff;

     (3) The resident census as of twelve o'clock (12:00) a.m.; and

     (4) Documentation of the use of unpaid eating assistants (if utilized by the nursing facility

on that date).

     (b) The posting information shall be maintained on file by the nursing facility for no less

than three (3) years and shall be made available to the public upon request.

     (c) Each nursing facility shall report the information compiled pursuant to section (a) of

this section and in accordance with department of health regulations to the department of health on

a quarterly basis in an electronic format prescribed by the director. The director shall make this

information available to the public on a quarterly basis on the department of health website,

accompanied by a written explanation to assist members of the public in interpreting the

information reported pursuant to this section.

     (d) In addition to the daily direct nurse staffing level reports, each nursing facility shall

post the following information in a legible format and in a conspicuous place readily accessible to

and visible by residents, employees, and visitors of the nursing facility:

     (1) The minimum number of nursing facility direct care staff per shift that is required to

comply with the minimum staffing level requirements in § 23-17.5-32; and

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     (2) The telephone number or internet website that a resident, employee, or visitor of the

nursing facility may use to report a suspected violation by the nursing facility of a regulatory

requirement concerning staffing levels and direct patient care.

     (e) No nursing facility shall discharge or in any manner discriminate or retaliate against

any resident of any nursing facility, or any relative, guardian, conservator, or sponsoring agency

thereof or against any employee of any nursing facility or against any other person because the

resident, relative, guardian, conservator, sponsoring agency, employee, or other person has filed

any complaint or instituted or caused to be instituted any proceeding under this chapter, or has

testified or is about to testify in any such proceeding or because of the exercise by the resident,

relative, guardian, conservator, sponsoring agency, employee, or other person on behalf of himself,

herself, or others of any right afforded by §§ 23-17.5-32, 23-17.5-33, and 23-17.5-34.

Notwithstanding any other provision of law to the contrary, any nursing facility that violates any

provision of this section shall:

     (1) Be liable to the injured party for treble damages; and

     (2)(i) Reinstate the employee, if the employee was terminated from employment in

violation of any provision of this section; or

     (ii) Restore the resident to the resident's living situation prior to such discrimination or

retaliation, including the resident's housing arrangement or other living conditions within the

nursing facility, as appropriate, if the resident's living situation was changed in violation of any

provision of this section. For purposes of this section, "discriminate or retaliate" includes, but is

not limited to, the discharge, demotion, suspension, or any other detrimental change in terms or

conditions of employment or residency, or the threat of any such action.

     (f)(1) The Any nursing facility that does not submit Payroll Based Journals (PBJ) to the

Centers for Medicare and Medicaid Services shall prepare an annual report showing the average

daily direct care nurse staffing level for the nursing facility by shift and by category of nurse to

include:

     (i) Registered nurses;

     (ii) Licensed practical nurses;

     (iii) Certified nursing assistants;

     (iv) Medication technicians;

     (v) Licensed physical therapists;

     (vi) Licensed occupational therapists;

     (vii) Licensed speech-language pathologists;

     (viii) Mental health workers who are also certified nurse assistants;

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     (ix) Physical therapist assistants;

     (x) The use of registered and licensed practical nurses and certified nursing assistant staff

from temporary placement agencies; and

     (xi) The nurse and certified nurse assistant turnover rates.

     (2) The annual report shall be submitted with the nursing facility's renewal application and

provide data for the previous twelve (12) months and ending on or after September 30, for the year

preceding the license renewal year. Annual reports shall be submitted in a format prescribed by the

director.

     (g) The information on nurse staffing shall be reviewed as part of the nursing facility's

annual licensing survey and shall be available to the public, both in printed form and on the

department's website, by nursing facility.

     (h) The director of nurses may act as a charge nurse only when the nursing facility is

licensed for thirty (30) beds or less.

     (i) Whenever the licensing agency determines, in the course of inspecting a nursing facility,

that additional staffing is necessary on any residential area to provide adequate nursing care and

treatment or to ensure the safety of residents, the licensing agency may require the nursing facility

to provide such additional staffing and any or all of the following actions shall be taken to enforce

compliance with the determination of the licensing agency:

     (1) The nursing facility shall be cited for a deficiency and shall be required to augment its

staff within ten (10) days in accordance with the determination of the licensing agency;

     (2) If failure to augment staffing is cited, the nursing facility shall be required to curtail

admission to the nursing facility;

     (3) If a continued failure to augment staffing is cited, the nursing facility shall be subjected

to an immediate compliance order to increase the staffing, in accordance with § 23-1-21; or

     (4) The sequence and inclusion or non-inclusion of the specific sanctions may be modified

in accordance with the severity of the deficiency in terms of its impact on the quality of resident

care.

     (j) No nursing staff of any nursing facility shall be regularly scheduled for double shifts.

     (k) A nursing facility that fails to comply with the provisions of this chapter, or any rules

or regulations adopted pursuant thereto, shall be subject to a penalty as determined by the

department.

     SECTION 2. This act shall take effect upon passage.

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LC005261

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO HEALTH AND SAFETY -- RIGHTS OF NURSING HOME PATIENTS--

STAFFING

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     This act would exempt certain nursing home facilities from the state minimum level

staffing requirement under certain circumstances.

     This act would take effect upon passage.

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LC005261

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