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[Federal Register Volume 75, Number 78 (Friday, April 23, 2010)]
[Rules and Regulations]
[Pages 21175-21179]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-8902]

[[Page 21175]]

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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Centers for Medicare & Medicaid Services

42 CFR Part 483

[CMS-2266-F]
RIN 0938-AO82

Medicare and Medicaid Programs; Waiver of Disapproval of Nurse 
Aide Training Program in Certain Cases

AGENCY: Centers for Medicare & Medicaid Services (CMS), HHS.

ACTION: Final rule.

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SUMMARY: This final rule will permit a waiver of a nurse aide training 
disapproval as it applies to skilled nursing facilities, in the 
Medicare program, and nursing facilities, in the Medicaid program, that 
are assessed a civil money penalty of at least $5,000 for noncompliance 
that is not related to quality of care. This is a statutory provision 
enacted by section 932 of the Medicare Prescription Drug, Improvement, 
and Modernization Act of 2003 (MMA) (Pub. L. 108-173, enacted December 
8, 2003).

DATES: Effective Date: These regulations are effective on May 24, 2010.

FOR FURTHER INFORMATION CONTACT: Pat Miller, (410) 786-6780.

SUPPLEMENTARY INFORMATION: 

I. Background

Waiver of Disapproval of Nurse Aide Training Program in Certain Cases

    To participate in the Medicare and/or Medicaid programs, long-term 
care facilities must be certified as meeting Federal participation 
requirements. Long-term care facilities include skilled nursing 
facilities (SNFs) for Medicare and nursing facilities (NFs) for 
Medicaid. The Federal participation requirements for these facilities 
are specified in regulations at 42 CFR part 483, subpart B.
    Section 1864(a) of the Social Security Act (the Act) authorizes the 
Secretary to enter into agreements with State survey agencies to 
determine whether SNFs meet the Federal participation requirements for 
Medicare. Section 1902(a)(33)(B) of the Act provides for State survey 
agencies to perform the same survey tasks for facilities participating 
or seeking to participate in the Medicaid program. The results of 
Medicare and Medicaid related surveys are used by the Centers for 
Medicare & Medicaid Services and the State Medicaid agency, 
respectively, as the basis for a decision to enter into or deny a 
provider agreement, recertify facility participation in one or both 
programs, or impose remedies on a noncompliant facility.
    To assess compliance with Federal participation requirements, 
surveyors conduct onsite inspections (surveys) of facilities. In the 
survey process, surveyors directly observe the actual provision of care 
and services to residents and the effect or possible effects of that 
care to evaluate whether the care furnished meets the assessed needs of 
individual residents.
    Sections 1819(b)(5) and 1919(b)(5) of the Act and implementing 
regulations at Sec.  483.75(e) require that all individuals employed by 
a facility as nurse aides must have successfully completed a nurse aide 
training program.
    Sections 1819(f)(2) and 1919(f)(2) of the Act provide that 
facility-based nurse aide training could be offered either by the 
facility or in the facility by another entity approved by the State. 
Therefore, a facility in good standing (that is, one that is not 
subject to an event that results in disapproval of a nurse aide 
training program) may offer a facility-based program in one of two 
ways: It can either conduct its own facility-based State-approved nurse 
aide training and have the State or a State-approved entity administer 
the nurse aide competency evaluation program, or it can offer the 
entire nurse aide training and competency evaluation program through an 
outside entity which has been approved by the State to conduct both 
components.
    Further, these sections prohibit States from approving a nurse aide 
training and competency evaluation program or a nurse aide competency 
evaluation program offered by or in a SNF or NF when any of the 
following specified events have occurred in that facility--
     The facility has operated under a nurse staffing waiver;
     The facility has been subject to an extended or partial 
extended survey unless the survey shows the facility is in compliance 
with the participation requirements; or
     The facility has been assessed a civil money penalty of 
not less than $5,000, or has been subject to a denial of payment, the 
appointment of a temporary manager, termination, or in the case of an 
emergency, been closed and had its residents transferred.
    Program disapproval is a required, rather than a discretionary, 
response whenever any of these events occur. Since facilities are 
required to employ nurse aides who have successfully completed a 
training program, when a facility loses its ability to conduct 
facility-based training, it must, for the duration of the 2-year 
program disapproval, provide the required training through either the 
State or another State-approved outside organization as provided by 
Sec.  483.151(a). However, sections 1819(f)(2)(C) and 1919(f)(2)(C) of 
the Act permit a waiver for program disapproval of programs offered in 
(but not by) a facility if the State--
     Determines that there is no other such program offered 
within a reasonable distance of the facility;
     Assures that an adequate environment exists for operating 
the program in the facility; and
     Notifies the State Long Term Care Ombudsman of this 
determination and these assurances.
    Section 932(c)(2)(B) of the MMA added sections 1819(f)(2)(D) and 
1919(f)(2)(D) of the Act which allows the Secretary to waive a 
facility's disapproval of its nurse aide training program upon 
application of a facility if the disapproval resulted from the 
imposition of a civil money penalty of at least $5,000 and that is not 
related to quality of care provided to residents in the facility.

II. Summary of the Proposed Provisions and Response to Comments

    In the November 23, 2007 Federal Register 72 FR 65692, we published 
the proposed rule entitled, ``Medicare and Medicaid Programs; Waiver of 
Disapproval of Nurse Aide Training Program in Certain Cases and Nurse 
Aide Petition for Removal of Information for Single Finding of 
Neglect'' and provided for a 30 day comment period.

A. Waiver of Disapproval of Nurse Aide Training Program in Certain 
Cases

    The statutory provisions set forth in the published proposed rule 
pertain specifically and only to the civil money penalty disapproval 
trigger under sections 1819(f)(2)(B)(iii)(I)(c) and 
1919(f)(2)(B)(iii)(I)(c) of the Act and establish authority for CMS to 
approve a facility's request to waive disapproval of its nurse aide 
training program when that facility has been assessed a civil money 
penalty of at least $5,000 for deficiencies that are not related to 
quality of care.
    We received a total of 23 comments from various States, health care 
associations and consumer advocacy organizations. The comments for this

[[Page 21176]]

proposal ranged from general support or general opposition of the 
proposal to more specific comments regarding the new training program 
disapproval waiver.

B. Nurse Aide Petition for Removal of Information for Single Finding of 
Neglect

    We received nine comments on the proposed rule provision requiring 
the State to establish a procedure to permit a nurse aide to petition 
the State to have a single finding of neglect removed from the nurse 
aide registry if the State determines that the employment and personal 
history of the nurse aide does not reflect a pattern of abusive 
behavior or neglect and the neglect involved in the original finding 
was a single occurrence as found at sections 1819(g)(1)(D) and 
1919(g)(1)(D) of the Social Security Act (section 4755 of the Balanced 
Budget Act of 1997--Pub. L. 105-33, enacted on August 5, 1997). The 
thoughtful comments received on these provisions of the proposed rule 
necessitate that CMS take additional time to further explore the issues 
put forth in the comments and analyze the statute to reconsider whether 
regulatory action is necessary and the available options before 
proceeding. In the event that the Secretary determines that regulatory 
action is required for this issue, we will publish a new notice of 
proposed rulemaking. Therefore, we are not finalizing these provisions 
in this final rule and are removing them from this final rule at this 
time.
General Comments
Waiver of Disapproval of Nurse Aide Training Program in Certain Cases
    Comment: One commenter suggested that CMS propose a legislative 
change that would remove the loss of nurse aide training as an 
automatic consequence to the three specified events discussed earlier 
in this preamble, and, instead, establish the training program 
disapproval as another available enforcement remedy. This commenter 
believes it would be more rational to create the training program 
disapproval as another enforcement option to be considered when 
deficiencies bear a relationship to the care and services that a nurse 
aide provides. The loss of the training program in this case would be 
appropriate because the facility's deficiencies demonstrate that it is 
not providing a positive training model for its nurse aides.
    Another commenter believes that the 2-year program disapproval 
period is excessive and that it impedes a facility's ability to recruit 
and retain staff. This commenter is particularly concerned about the 2-
year program disapproval based on a facility having a nurse staffing 
waiver because the ``lock out'' contradicts the staffing waiver 
criteria and it does not permit a facility to begin a training program 
once it has acquired the needed staff.
    Response: This comment falls outside the purview of this 
regulation. This rule specifically pertains to permitting a waiver of a 
facility's nurse aide training program disapproval when the facility is 
assessed a civil money penalty of at least $5,000 for noncompliance 
that is not related to quality of care.
    Regarding the length of the disapproval period, we note that the 2-
year disapproval period is a statutory provision. Such a legislative 
change falls outside the purview of this regulation.
    Comment: One commenter suggested that the variability in the use of 
civil money penalties among States could create inequities in the 
waiver application process.
    Response: Some variations may exist given the fact that these 
penalties are a discretionary remedy and are, therefore, not imposed 
with identical frequency and amount from State to State. We have 
expended great efforts to ensure all determinations are made as 
consistently as possible, particularly with civil money penalty 
determinations.
    Comment: One commenter suggested that the word ``assessed'' not be 
used as it relates to the $5,000 civil money penalty threshold amount 
that enables a facility to request a training program disapproval 
waiver. Since ``assessed'' has been defined in CMS's State Operations 
Manual to mean the final amount determined to be owed after a hearing, 
waiver of right to a hearing, or settlement, this commenter believes 
that it allows a facility to delay the imposition of the nurse aide 
training prohibition for too long. Instead, the commenter proposed that 
CMS redefine ``assessed'' to mean the final decision of CMS to impose a 
civil money penalty.
    Response: We do not have the authority to hasten or otherwise 
change the timeframe in which determinations are made about nurse aide 
training disapproval based on imposition of civil money penalties of at 
least $5,000 or more. The statute is explicit that a nurse aide 
training program must be prohibited when a facility is ``assessed'' a 
civil money penalty of at least $5,000. Additionally, a facility has a 
right to appeal a certification of noncompliance that leads to an 
enforcement remedy, such as a civil money penalty, and/or to waive its 
right to a hearing which reduces the assessed penalty amount under 42 
CFR 488.436(b) before the final penalty amount owed by the facility is 
determined. Indeed, under 42 CFR 498.3(b)(14) and (d)(10)(i), a 
facility may only challenge the scope and severity level of 
noncompliance found by CMS if a successful challenge would affect the 
range of the civil money penalty that could be collected by CMS or 
impact upon the facility's nurse aide training program. Since various 
events could result in a different amount of civil money penalty 
``assessed'' than the original amount, decisions about training program 
disapproval prior to knowing the final assessed penalty amount would be 
contrary to the intent of the statute. Nurse aide training program 
disapproval takes effect after a final civil money penalty amount is 
assessed if the amount exceeds at least $5,000.
    Comment: One commenter wanted to know if a facility would still 
lose its nurse aide training program if it had other disapproval-
causing events, even though it had a civil money penalty that qualified 
for a training program disapproval waiver. In other words, does each 
separate event, that requires nurse aide training disapproval, stand 
alone?
    Response: Yes. This waiver does not eliminate the loss of nurse 
aide training based on other occurring events that also require 
training disapproval, such as if, within the previous 2 years, a 
facility is subjected to an extended (or partial extended) survey under 
sections 1819(g)(2)(B)(i) or 1919(g)(2)(B)(i) or when a facility has 
been subject to a remedy described in sections 1819(h)(2)(B)(i), or 
(iii), 1819(h)(4), 1919(h)(1)(B)(i) or 1919(h)(2)(A)(i), (iii) or (iv) 
of the Act.
    Comment: One commenter wondered whether the waiver request should 
be submitted to the State or to CMS. This commenter also asked whether 
the training program disapproval waiver applies only to facilities that 
operate their own training program or if it also applies to facilities 
that serve as a training site for another program, for example, a 
technical college.
    Response: Waivers should be submitted to the State. Waiver 
determinations will be made by CMS on a case-by-case basis after 
considering the recommendation and facts of that case as provided by 
the State. This point was made in the November 23, 2007 proposed rule 
on page 65694 in the preamble to the proposed rule and will be included 
in manual guidance that will be developed in collaboration with 
interested stakeholders.
    Regarding the waiver's applicability, the new training program 
disapproval

[[Page 21177]]

waiver provision cross-references to sections 1819(f)(2)(B)(iii)(I) and 
1919(f)(2)(B)(iii)(I) of the Act, which specifically apply only to 
training programs ``offered by or in'' a facility. Therefore, the 
training program disapproval waivers would also apply to a facility 
that serves as a training site for another program because it is being 
offered within the facility.
    Comment: One commenter believes that CMS should make waiver 
determinations, as well as the rationale for the determinations, 
available to the public in order to ensure transparency in the process.
    Response: While this comment is outside the scope of this final 
rule, we appreciate the recommendation and will consider expanding 
current disclosure policies in a separate regulatory document.
    Comment: Some commenters believe that broader and more specific 
direction needs to be provided about what factors will be considered in 
making waiver request determinations. One commenter stressed the need 
for specific timeframes and procedures relative to submitting and 
approving these requests. Other commenters disagreed with the examples 
and rationale provided in the preamble to the proposed rule to 
demonstrate the general expectation of the rule's applicability. These 
commenters urged that different and expanded examples and decision 
making criteria be provided, and some offered criteria. A few of these 
commenters believe that such additional direction should be provided in 
this final rule rather than issued as manual guidance in CMS's State 
Operations Manual in order to ensure appropriate public awareness and 
comment. Other commenters requested that stakeholders be included in 
developing the manual guidance.
    Response: While we do not intend to include instructions in this 
final rule on these operational issues, we will work with all 
interested stakeholders to develop the guidance necessary to implement 
the regulatory provisions set forth in this final rule. Participation 
of all interested parties will ensure that the various perspectives are 
represented and considered.
    Comment: One commenter expressed concern about the distinction that 
the proposed rule made between per instance civil money penalties and 
per day civil money penalties relative to determining how discrete and 
aggregate noncompliance should be evaluated in applying the waiver 
provision. This commenter contends that no such flexibility exists in 
the supporting legislation because it does not specifically 
differentiate between civil money penalties that are based on single, 
or multiple, instances of noncompliance. CMS is urged to remove the 
flexibility and instead require that any noncompliance with quality of 
care should, regardless of whether singularly or in combination with 
other non-quality of care noncompliance, prevent a training disapproval 
waiver.
    Response: We do not agree with this comment. The statute refers to 
civil money penalties generally so it does not specifically acknowledge 
the two civil money penalty types, that is, the per day and per 
instance, nor does it preclude differentiating between them. Since 
civil money penalties can be assessed for specific instances of 
noncompliance (per instance) as well as for aggregate noncompliance 
(per day), we needed a method of determining how discrete and aggregate 
noncompliance should be evaluated for waiver approval purposes. As 
stated in the preamble to the proposed rule, when a per instance civil 
money penalty of at least $5,000 is assessed for noncompliance with a 
specific participation requirement, the evaluation of that specific 
deficiency's direct impact on residents is clear-cut. However, when the 
civil money penalty of at least $5,000 is per day, the evaluation 
becomes more difficult because the penalty amount is not directly 
attributable to any one deficiency but, instead, is for the total 
noncompliance of the facility. Additionally, aggregate noncompliance 
may be comprised of a combination of quality of care and non quality of 
care deficiencies as well as various levels of severity and scope. When 
this is the case, all of the deficiencies would need to be reviewed to 
determine if individually or in total they are indicative of an overall 
facility failure or inability to directly provide quality care to 
residents. A single care-giving deficiency, among other non care-giving 
deficiencies (none of which meet other criteria for nurse aide training 
disapproval), may result in a conclusion that the facility, overall, is 
providing quality care to its residents and therefore, is providing a 
positive training model for its nurse aides. However, it is also 
possible that the seriousness of that single facility failure, among 
other non care-giving deficiencies, may result in a conclusion that the 
facility, overall, is not providing quality care to its residents and 
therefore, is not providing a positive training model for its nurse 
aides. The ability to make these determinations is critical to ensure 
that rational and defensible conclusions can be made relative to the 
facility's ability to provide quality care to its residents as well as 
whether the loss of its nurse aide training program is appropriate or 
eligible for a waiver.

Part 483--Requirements for States and Long Term Care Facilities

Section 483.151 State Review and Approval of Nurse Aide Training and 
Competency Evaluation Programs
    We proposed to redesignate the current Sec.  483.151(c), (d), and 
(e) as Sec.  483.151(d), (e), and (f), respectively. We also proposed 
to add a new paragraph (c)(1) in Sec.  483.151 where a facility may 
request that we waive the disapproval of its nurse aide training 
program when the facility has been assessed a civil money penalty of 
not less than $5,000 if the civil money penalty was not related to the 
quality of care furnished to residents in the facility. We proposed to 
add a new paragraph (c)(2) in Sec.  483.151 to define the term quality 
of care furnished to residents, as the direct hands-on care and 
treatment that a health care professional or direct care staff provides 
to a resident. We proposed to add a new paragraph (c)(3) in Sec.  
483.151 to specify that any waiver of disapproval of a nurse aide 
training program does not waive any civil money penalty imposition.
    Comment: Several commenters believe that the proposed definition of 
``quality of care'', as direct hands-on care and treatment that a 
health care professional or direct care staff provides to a resident, 
is too limited and should be expanded to include other aspects of care 
and services that the facility provides to residents. These commenters 
contend that issues related to, for example, resident's rights, 
cleanliness, and safety can impact a resident's quality of care as 
significantly as those that constitute direct hands-on care and they 
should also preclude a training program disapproval waiver.
    Response: While we do not disagree that all care and services 
provided by a nursing home are important, Congressional intent about 
what constitutes ``quality of care'' is made clear on page 776 of the 
Conference Report to the MMA (H.R. Rep. No. 108-391 (2003), reprinted 
in 2004 U.S.C.C.A.N. 1808, 2130), which states that, ``* * * Quality of 
care in such instances refers to direct, hands on care furnished to 
residents of a facility.'' In order to address this reference, it was 
necessary to identify care-giving requirements, that is, care and 
treatment that a health care professional or direct care staff provides 
to a resident. That

[[Page 21178]]

determination will lead to conclusions about the impact the 
noncompliance may have on the facility's ability to provide a positive 
training model to its nurse aides. Additionally, it is important to 
note as we did in the preamble to the proposed rule, that noncompliance 
need not be in a care-giving requirement in order to be assessed a 
civil money penalty of at least $5,000 nor to disapprove a nurse aide 
training program. Noncompliance with any requirement, whether care-
giving or non-care-giving, may result in the imposition of a civil 
money penalty or other remedy. Once a $5,000 or greater civil money 
penalty remedy or other triggering remedies are imposed, a facility's 
ability to provide nurse aide training is prohibited for 2 years unless 
a waiver is approved and no other training-disapproval event has 
occurred.

IV. Collection of Information Requirements

    Under the Paperwork Reduction Act of 1995, we are required to 
provide 30-day notice in the Federal Register and solicit public 
comment when a collection of information requirement is submitted to 
the Office of Management and Budget (OMB) for review and approval. In 
order to fairly evaluate whether an information collection should be 
approved by OMB, section 3506(c)(2)(A) of the Paperwork Reduction Act 
of 1995 requires that we solicit comment on the following issues:
     The need for the information collection and its usefulness 
in carrying out the proper functions of our agency.
     The accuracy of our estimate of the information collection 
burden.
     The quality, utility, and clarity of the information to be 
collected.
     Recommendations to minimize the information collection 
burden on the affected public, including automated collection 
techniques.
    Therefore, we are soliciting public comment on each of these issues 
for the following information collection requirements discussed below.

Section 483.151 State Review and Approval of Nurse Aide Training and 
Competency Evaluation Programs

    Section 483.151(c)(1) states that a facility may request that CMS 
waive disapproval of its nurse aide training program when a facility 
has been assessed a civil money penalty of not less than $5,000 if the 
civil money penalty was not related to the quality of care furnished to 
residents in the facility.
    The burden associated with this requirement is the time and effort 
put forth by the facility to request a waiver as well as the time and 
effort for States to make determinations on each waiver request. We 
estimate it would take one facility 1 hour to submit a waiver and one 
State 1 hour to make a determination on the request. We believe that 
462 facilities may potentially request a waiver annually; therefore, 
the total annual burden associated with this requirement is 462 hours 
for facilities and 462 hours for States.
    As required by section 3504(h) of the Paperwork Reduction Act of 
1995, we have submitted a copy of this final regulation to OMB for its 
review of these information collection requirements described above.
    If you comment on these information collection and record keeping 
requirements, please mail copies directly to the following:
    Centers for Medicare & Medicaid Services, Office of Strategic 
Operations and Regulatory Affairs, Division of Regulations Development, 
Attn.: Melissa Musotto, CMS-2266-F, Room C5-14-03, 7500 Security 
Boulevard, Baltimore, MD 21244-1850.
    Office of Information and Regulatory Affairs, Office of Management 
and Budget, Room 10235, New Executive Office Building, Washington, DC 
20503, Attn.: Katherine T. Astrich, CMS Desk Officer, CMS-2266-F, 
Katherine_T._Astrich@omb.eop.gov. Fax (202) 395-6974.

V. Regulatory Impact Statement

    We have examined the impact of this rule as required by Executive 
Order 12866 on Regulatory Planning and Review (September 30, 1993, as 
further amended), the Regulatory Flexibility Act (RFA) (September 19, 
1980, Pub. L. 96-354), section 1102(b) of the Social Security Act, 
section 202 of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-
4), and Executive Order 13132 on Federalism (August 4, 1999), and the 
Congressional Review Act (5 U.S.C. 804 (2)).
    Executive Order 12866 (as amended by Executive Order 13258, directs 
agencies to assess all costs and benefits of available regulatory 
alternatives and, if regulation is necessary, to select regulatory 
approaches that maximize net benefits (including potential economic, 
environmental, public health and safety effects, distributive impacts, 
and equity). A regulatory impact analysis (RIA) must be prepared for 
major rules with economically significant effects ($100 million or more 
in any 1 year). This regulatory requirement will not reach the economic 
threshold and thus is not considered a major rule.
    The RFA requires agencies to analyze options for regulatory relief 
of small businesses. For purposes of the RFA, small entities include 
small businesses, non-profit organizations and government agencies. For 
purposes of the RFA, most nursing homes are considered to be small 
entities. We are not preparing an analysis for the RFA for this 
regulatory proposal because we have determined that this rule will not 
have a significant economic impact on a substantial number of small 
businesses or other small entities. Therefore, the Secretary has 
determined that this final rule will not have a significant economic 
impact on a substantial number of small entities.
    In addition, section 1102(b) of the Act requires us to prepare a 
regulatory impact analysis if a rule may have a significant impact on 
the operations of a substantial number of small rural hospitals. We are 
not preparing an analysis for section 1102(b) of the Act for this 
regulatory proposal because we have determined, and the Secretary has 
determined, that this rule will not have a significant impact on the 
operations of a substantial number of small rural hospitals.
    Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) also 
requires that agencies assess anticipated costs and benefits before 
issuing any rule whose mandates require spending in any 1 year of $100 
million in 1995 dollars, updated annually for inflation. In 2008 that 
threshold was approximately $125 million. This regulatory proposal will 
have no consequential effect on State, local, or Tribal governments in 
the aggregate or by the private sector, of $127 million.
    Executive Order 13132 establishes certain requirements that an 
agency must meet when it promulgates a proposed rule (and subsequent 
final rule) that imposes substantial direct requirement costs on State 
and local governments, preempts State law, or otherwise has Federalism 
implications. Since this regulation will not impose a substantial 
direct cost on State or local governments, preempt States, or otherwise 
have a Federalism implication, the requirements of E.O. 13132 are not 
applicable.
    In accordance with the provisions of Executive Order 12866, this 
regulation was reviewed by the Office of Management and Budget.

List of Subjects in 42 CFR Part 483

    Grant programs--health, Health facilities, Health professions, 
Health Records, Medicaid, Medicare, Nursing

[[Page 21179]]

homes, Nutrition, Reporting and recordkeeping requirements, Safety.

0
For the reasons set forth in the preamble, the Centers for Medicare and 
Medicaid Services amends 42 CFR chapter IV as set forth below:

PART 483--REQUIREMENTS FOR STATES AND LONG TERM CARE FACILITIES

0
1. The authority citation for part 483 continues to read as follows:

    Authority: Secs. 1102 and 1871 of the Social Security Act (42 
U.S.C. 1302 and 1395hh).
* * * * *

0
2. Section 483.150(a) is revised to read as follows:

Sec.  483.150  Statutory basis: Deemed meeting or waiver of 
requirements.

    (a) Statutory basis. This subpart is based on sections 1819(b)(5), 
1819(f)(2), 1919(b)(5), and 1919(f)(2) of the Act, which establish 
standards for training nurse-aides and for evaluating their competency.
* * * * *

0
3. Section 483.151 is amended by--
0
A. Revising the section heading.
0
B. Redesignating paragraphs (c), (d), and (e) as paragraphs (d), (e), 
and (f) respectively.
0
C. Adding new paragraph (c).
    The revision and addition reads as follows:

Sec.  483.151  State review and approval of nurse aide training and 
competency evaluation programs.

* * * * *
    (c) Waiver of disapproval of nurse aide training programs.
    (1) A facility may request that CMS waive the disapproval of its 
nurse aide training program when the facility has been assessed a civil 
money penalty of not less than $5,000 if the civil money penalty was 
not related to the quality of care furnished to residents in the 
facility.
    (2) For purposes of this provision, ``quality of care furnished to 
residents'' means the direct hands-on care and treatment that a health 
care professional or direct care staff furnished to a resident.
    (3) Any waiver of disapproval of a nurse aide training program does 
not waive any requirement upon the facility to pay any civil money 
penalty.
* * * * *
(Catalog of Federal Domestic Assistance Program No. 93.778, Medical 
Assistance Program)

(Catalog of Federal Domestic Assistance Program No. 93.773, 
Medicare--Hospital Insurance; and Program No. 93.774, Medicare--
Supplementary Medical Insurance Program)

    Dated: January 14, 2010.
Charlene Frizzera,
Acting Administrator, Centers for Medicare & Medicaid Services.
    Approved: April 12, 2010.
Kathleen Sebelius,
Secretary.
[FR Doc. 2010-8902 Filed 4-22-10; 8:45 am]
BILLING CODE 4120-01-P
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