§ 442.43 Payment transparency reporting. ( a ) *Definitions.* ( 1 ) *Compensation* means, with respect to direct care workers and support staff delivering services authorized under this part: ( i ) Salary, wages, and other remuneration as defined by the Fair Labor Standards Act and implementing regulations (29 U.S.C. 201 *et seq.,* 29 CFR parts 531 and 778);
( ii ) Benefits (such as health and dental benefits, life and disability insurance, paid leave, retirement, and tuition reimbursement); and
( iii ) The employer share of payroll taxes.
( 2 ) *Direct care worker* means one of the following individuals who provides services to Medicaid-eligible individuals receiving services under this part, who may be employed by or contracted or subcontracted with a Medicaid provider or State or local government agency: ( i ) A registered nurse, licensed practical nurse, nurse practitioner, or clinical nurse specialist;
( ii ) A certified nurse aide who provides services under the supervision of a registered nurse, licensed practical nurse, nurse practitioner, or clinical nurse specialist;
( iii ) A licensed physical therapist, occupational therapist, speech-language pathologist, or respiratory therapist;
( iv ) A certified physical therapy assistant, occupational therapy assistant, speech-language therapy assistant, or respiratory therapy assistant or technician;
( v ) A social worker;
( vi ) A direct support professional;
( vii ) A personal care aide;
( viii ) A medication assistant, aide, or technician;
( ix ) A feeding assistant;
( x ) Activities staff; or
( xi ) Any other individual who is paid to provide clinical services, behavioral supports, active treatment (as defined at § 483.440 of this chapter) or address activities of daily living (such as those described in § 483.24(b) of this chapter) for Medicaid-eligible individuals receiving Medicaid services under this part, including nurses and other staff providing clinical supervision.
( 3 ) *Support staff* means an individual who is not a direct care worker and who maintains the physical environment of the care facility or supports other services for residents. Support staff may be employed by or contracted or subcontracted with a Medicaid provider or State or local government agency. They include any of the following individuals: ( i ) A housekeeper;
( ii ) A janitor or environmental services worker;
( iii ) A groundskeeper;
( iv ) A food service or dietary worker;
( v ) A driver responsible for transporting residents;
( vi ) A security guard; or
( vii ) Any other individual who is not a direct care worker and who maintains the physical environment of the care facility or supports other services for Medicaid-eligible individuals receiving Medicaid services under this part.
( 4 ) *Excluded costs* means costs reasonably associated with delivering Medicaid-covered nursing facility or ICF/IID services that are not included in the calculation of the percentage of Medicaid payments to providers that is spent on compensation for direct care workers and support staff. Such costs are limited to: ( i ) Costs of required trainings for direct care workers and support staff (such as costs for qualified trainers and training materials);
( ii ) Travel costs for direct care workers and support staff (such as mileage reimbursement or public transportation subsidies); and
( iii ) Costs of personal protective equipment for facility staff.
( b ) *Reporting requirements.* The State must report to CMS annually, by facility, the percentage of Medicaid payments (not including excluded costs) for services specified in paragraph (b)(1) of this section, that is spent on compensation for direct care workers and on compensation for support staff, at the time and in the form and manner specified by CMS. For the purposes of this part, Medicaid payment for fee-for-service (FFS) includes base and supplemental payments as defined in section 1903(bb)(2) of the Social Security Act, and for payments from a managed care organization (MCO) or prepaid inpatient health plan (PIHP) (as these entities are defined in § 438.2 of this chapter) includes the MCO's or PIHP's contractually negotiated rate, State directed payments as defined in § 438.2 of this chapter, pass-through payments as defined in § 438.6(a) of this chapter for nursing facilities, and any other payments from the MCO or PIHP. ( 1 ) *Services.* Except as provided in paragraphs (b)(2) and (3) of this section, reporting must be based on all Medicaid payments (including but not limited to FFS base and supplemental payments, and payments from an MCO or PIHP, as applicable) made to nursing facility and ICF/IID providers for Medicaid-covered services, with the exception of services provided in swing bed hospitals as defined in § 440.40(a)(1)(ii)(B) of this chapter.
( 2 ) *Exclusion of specified payments.* The State must exclude from its reporting to CMS payments claimed by the State for Federal financial participation under this part for which Medicaid is not the primary payer.
( 3 ) *Exclusion of data from the Indian Health Service and Tribal health programs.* States must exclude data from the Indian Health Service and Tribal health programs subject to the requirements at 25 U.S.C. 1641 from the reporting required in paragraph (b) of this section.
( c ) *Report contents and methodology* — ( 1 ) *Contents.* Reporting must provide information necessary to identify, at the facility level, the percent of Medicaid payments spent on compensation to: ( i ) Direct care workers at each nursing facility;
( ii ) Support staff at each nursing facility;
( iii ) Direct care workers at each ICF/IID; and
( iv ) Support staff at each ICF/IID.
( 2 ) *Methodology.* The State must provide information according to the methodology, form, and manner of reporting stipulated by CMS.
( d ) *Availability and accessibility requirements.* The State must operate a website consistent with § 435.905(b) of this chapter that provides the results of the reporting requirements specified in paragraphs (b) and (c) of this section. In the case of a State that implements a managed care delivery system under the authority of sections 1915(a), 1915(b), 1932(a), and/or 1115(a) of the Act and that includes nursing facility and/or ICF/IID services in their MCO or PIHP contracts, the State may meet this requirement by linking to individual MCO's or PIHP's websites. The State must: ( 1 ) Include clear and easy to understand labels on documents and links;
( 2 ) Verify no less than quarterly, the accurate function of the website and the current accuracy of the information and links; and
( 3 ) Include prominent language on the website explaining that assistance in accessing the required information on the website is available at no cost and include information on the availability of oral interpretation in all languages and written translation available in each non-English language, how to request auxiliary aids and services, and a toll-free and TTY/TDY telephone number.
( e ) *Information reported by States.* CMS must report on its website the results of the reporting requirements specified in paragraphs (b) and (c) of this section that the State reports to CMS.
( f ) *Applicability date.* States must comply with the requirements in this section beginning 4 years after June 21, 2024; and in the case of the State that implements a managed care delivery system under the authority of section 1915(a), 1915(b), 1932(a), or 1115(a) of the Act and includes nursing facility services or ICF/IID services, the first rating period for contracts with the MCO or PIHP beginning on or after 4 years after June 21, 2024.
[89 FR 40995, May 9, 2024]