Federal Register / Vol. 75, No. 78 / Friday, April 23, 2010 / Rules and Regulations 21175 

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. 

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 

§ 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 facilitybased 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 

§ 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 

mstockstill on DSKH9S0YB1PROD with RULES

21176 Federal Register / Vol. 75, No. 78 / Friday, April 23, 2010 / Rules and Regulations 

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 

mstockstill on DSKH9S0YB1PROD with RULES

Federal Register / Vol. 75, No. 78 / Friday, April 23, 2010 / Rules and Regulations 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 nonquality 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 § 483.151(c), (d), and (e) as 

§ 483.151(d), (e), and (f), respectively. 

We also proposed to add a new 

paragraph (c)(1) in § 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 § 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 § 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 

mstockstill on DSKH9S0YB1PROD with RULES

21178 Federal Register / Vol. 75, No. 78 / Friday, April 23, 2010 / Rules and Regulations 

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 caregiving 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 caregiving 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 

mstockstill on DSKH9S0YB1PROD with RULES

Federal Register / Vol. 75, No. 78 / Friday, April 23, 2010 / Rules and Regulations 21179 

homes, Nutrition, Reporting and 

recordkeeping requirements, Safety. 

■ 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 

■ 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). 

* * * * * 

■ 2. Section 483.150(a) is revised to read 

as follows: 

§ 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. 

* * * * * 

■ 3. Section 483.151 is amended by— 

■ A. Revising the section heading. 

■ B. Redesignating paragraphs (c), (d), 

and (e) as paragraphs (d), (e), and (f) 

respectively. 

■ C. Adding new paragraph (c). 

The revision and addition reads as 

follows: 

§ 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 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[Docket No. FWS–R1–ES–2009–0005; 

92220–1113–0000–C6] 

RIN 1018–AW42 

Endangered and Threatened Wildlife 

and Plants; Reclassification of the 

Oregon Chub From Endangered to 

Threatened 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Final rule. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), are 

reclassifying the federally endangered 

Oregon chub (Oregonichthys crameri) to 

threatened status under the authority of 

the Endangered Species Act of 1973, as 

amended (Act). This decision is based 

on a thorough review of the best 

available scientific and commercial 

data, which indicate that the species’ 

status has improved to the point that the 

Oregon chub is not currently in danger 

of extinction throughout all or a 

significant portion of its range. 

DATES: This final rule is effective on 

May 24, 2010. 

ADDRESSES: Comments and materials 

received, as well as supporting 

documentation used in the preparation 

of this final rule, are available for 

inspection, by appointment, during 

normal business hours, at the U.S. Fish 

and Wildlife Service, Oregon Fish and 

Wildlife Office, 2600 SE 98th Avenue, 

Suite 100, Portland, OR 97266; 

(telephone 503/231–6179). 

FOR FURTHER INFORMATION CONTACT: 

State Supervisor, U.S. Fish and Wildlife 

Service, Oregon Fish and Wildlife Office 

(see ADDRESSES). Persons who use a 

telecommunications device for the deaf 

(TDD) may call the Federal Information 

Relay Service (FIRS) at 800/877–8339, 

24 hours a day, 7 days a week. 

SUPPLEMENTARY INFORMATION: 

Background 

The purposes of the Act (16 U.S.C. 

1531 et seq.) are to provide a means 

whereby the ecosystems upon which 

endangered and threatened species 

depend may be conserved and to 

provide a program for the conservation 

of those species. A species can be listed 

as endangered or threatened because of 

any of the following factors: (1) The 

present or threatened destruction, 

modification, or curtailment of its 

habitat or range; (2) overutilization for 

commercial, recreational, scientific, or 

educational purposes; (3) disease or 

predation; (4) the inadequacy of existing 

regulatory mechanisms; or (5) other 

natural or manmade factors affecting its 

continued existence. When we 

determine that protection of a species 

under the Act is no longer warranted, 

we take steps to remove (delist) the 

species from the Federal list. If a species 

is listed as endangered, we may 

reclassify it to threatened status as an 

intermediate step before delisting; 

however, reclassification to threatened 

status is not required in order to delist. 

Section 3 of the Act defines terms that 

are relevant to this final rule. An 

endangered species is any species that 

is in danger of extinction throughout all 

or a significant portion of its range. A 

threatened species is any species that is 

likely to become an endangered species 

within the foreseeable future throughout 

all or a significant portion of its range. 

A species includes any subspecies of 

fish or wildlife or plants, and any 

distinct population segment of any 

species of vertebrate fish or wildlife that 

interbreeds when mature. 

Previous Federal Actions 

In our December 30, 1982, Review of 

Vertebrate Wildlife for Listing as 

Endangered or Threatened Species, we 

listed the Oregon chub as a Category 2 

candidate species (47 FR 58454). 

Category 2 candidates, a designation no 

longer used by the Service, were species 

for which information contained in 

Service files indicated that proposing to 

list was possibly appropriate but 

additional data were needed to support 

a listing proposal. The Oregon chub 

maintained its Category 2 status in both 

the September 18, 1985 (50 FR 37958) 

and January 6, 1989 (54 FR 554) Notices 

of Review. 

On April 10, 1990, the Service 

received a petition to list the Oregon 

chub as an endangered species and to 

designate critical habitat. The petition 

and supporting documentation were 

submitted by Dr. Douglas F. Markle and 

Mr. Todd N. Pearsons, both affiliated 

with Oregon State University. The 

mstockstill on DSKH9S0YB1PROD with RULES