Federal Register / Vol. 70, No. 208 / Friday, October 28, 2005 / Rules and Regulations 62065 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Centers for Medicare & Medicaid 

Services 

42 CFR Part 483 

[CMS–3121–F] 

RIN 0938–AM55 

Medicare and Medicaid Programs; 

Requirements for Long Term Care 

Facilities; Nursing Services; Posting of 

Nurse Staffing Information 

AGENCY: Centers for Medicare & 

Medicaid Services (CMS), HHS. 

ACTION: Final rule. 

SUMMARY: In this rule, we finalize 

provisions specified in the Medicare, 

Medicaid, and SCHIP Benefits 

Improvement and Protection Act of 

2000 (BIPA) that establish new data 

collection, posting, and recordkeeping 

requirements for skilled nursing 

facilities (SNFs) and nursing facilities 

(NFs). It requires that on a daily basis 

for each shift, SNFs and NFs must post 

nurse staffing data for the licensed and 

unlicensed staff directly responsible for 

resident care in the facility. Facility 

census information must also be posted. 

This final rule is also part of a broader 

communication outreach initiative by 

CMS to provide beneficiaries, their 

families, and the public with access to 

updated data and other information that 

can assist them in making healthcare 

decisions. 

DATES: The provisions of this final rule 

are effective on December 27, 2005. 

FOR FURTHER INFORMATION CONTACT: 

Anita Panicker, (410) 786–5646, or 

Jeannie Miller, (410) 786–3164. 

SUPPLEMENTARY INFORMATION: 

I. Statutory and Regulatory Background 

Medicare and Medicaid-participating 

nursing homes are regulated by sections 

1819 and 1919 of the Social Security 

Act (the Act), added by Title IV, subtitle 

C of the Omnibus Budget Reconciliation 

Act of 1987 (OBRA ’87) (Pub. L. 100–

203, December 22, 1987). 

On February 27, 2004 we published a 

proposed rule in the Federal Register 

entitled ‘‘Medicare and Medicaid 

Programs; Requirements for Long Term 

Care Facilities; Nursing Services; 

Posting of Nurse Staffing Information’’

(69 FR 9282). In the proposed rule, we 

presented our proposal to implement 

section 941 of the Medicare, Medicaid, 

and SCHIP Benefits Improvement and 

Protection Act of 2000 (BIPA) by 

establishing a new data collection and 

recordkeeping requirement for SNFs 

and NFs. Section 941 of BIPA, which 

was effective January 1, 2003, requires 

SNFs and NFs to post daily, for each 

shift, the number of licensed and 

unlicensed nursing staff directly 

responsible for resident care in the 

facility, and it requires the information 

to be displayed clearly in a visible 

place. Additionally, section 941 of BIPA 

requires the Secretary of Health and 

Human Services (the Secretary) to 

specify a ‘‘uniform manner’’ for display 

of this information. 

In the February 27, 2004 proposed 

rule, we proposed that SNFs and NFs be 

required to: (1) On a daily basis, use a 

CMS-specified form at the end of each 

shift to indicate the number of full-time 

equivalents (FTEs) of registered nurses, 

licensed practical nurses, licensed 

vocational nurses, and certified nurse 

aides (CNAs) directly responsible for 

resident care; (2) verify or determine the 

resident census on a daily basis, (3) post 

the completed form in a prominent 

place readily accessible to residents and 

visitors; (4) make the form available to 

the public upon request; and (5) 

maintain the forms for a minimum of 3 

years or as required by State law, 

whichever is greater. The requirements 

in this final rule were revised based on 

the comments we received on the 

proposed rule. 

To date, we have also taken the 

following actions to educate providers 

and clarify the requirements to 

implement section 941 of BIPA: 

• An October 10, 2002 letter to State 

Agency Directors, which can be found at 

http://www.cms.hhs.gov/medicaid/ 

survey-cert/SC0303.pdf. 

• Presentation of information at a 

national nursing home conference. 

• Publication of a notice on an 

electronic bulletin board used by 

nursing homes. 

• A December 24, 2002 letter to 

nursing homes, which can be found at 

http://www.cms.hhs.gov/medicaid/bipa/ 

bipanh.asp. 

II. Ongoing Research on Nursing Home 

Quality Improvement 

In November 2001, the Secretary 

announced an initiative to focus on 

efforts to address quality of care 

improvement for nursing homes. The 

Nursing Home Quality Initiative, 

implemented nationwide in November 

2002, represents a broad-based program 

that includes our continuing regulatory 

and enforcement systems, new and 

improved consumer information, 

community-based nursing home quality 

improvement programs and 

partnerships, and collaborative efforts to 

promote quality awareness and 

improvement. 

Working with quality measurement 

experts, the National Quality Forum and 

a diverse group of nursing home 

industry stakeholders, we adopted a set 

of nursing home quality measures. The 

Nursing Home Quality Initiative 

combines new information for 

consumers about the quality of care 

provided in individual nursing homes 

with current resources available to 

nursing homes to improve the quality of 

care in their facilities data for 

comparison, deficiency survey results 

and staffing information about the 

nation’s Medicare and Medicaidcertified nursing homes through the 

Nursing Home Compare Web site, 

which is updated quarterly. 

The main components of the initiative 

are nursing home quality measures 

derived from resident assessment data. 

This information is routinely collected 

by nursing homes at specified intervals 

during a resident’s stay (using the 

Minimum Data Set or MDS). These 

measures provide additional 

information to help consumers make 

informed decisions about nursing home 

care options. Publication of the 

measures is intended to motivate 

nursing homes to improve care delivery 

and encourage discussions about quality 

between consumers and clinicians. 

Additional CMS-sponsored quality 

improvement information may be found 

in the ‘‘Nursing Home Compare’’ section 

of our Web site at http:// 

www.medicare.gov. The primary 

purpose of Nursing Home Compare is to 

provide detailed information about the 

past performance of every Medicareand Medicaid-certified nursing home in 

the country. Nursing Home Compare 

contains the following sections of 

detailed information: 

• About the Nursing Home: including 

the number of beds and type of 

ownership. 

• Quality Measures: including the 

percentage of residents with pressure 

(bed) sores, percentage of residents with 

physical restraints, and more. 

• Inspection Result Information: 

including health and safety deficiencies 

found during the most recent State 

nursing home survey and from recent 

complaint investigations. 

• Nursing Home Staff Information: 

including the average number of hours 

worked by registered nurses, licensed 

practical or vocational nurses, and 

certified nurse aides per resident per 

day. 

Each nursing home is required to 

report nursing staff totals to its State 

survey agency during the annual survey. 

We receive this information from the 

State survey agencies and convert the 

nursing staff hours reported into the 

62066 Federal Register / Vol. 70, No. 208 / Friday, October 28, 2005 / Rules and Regulations 

number of staff hours per resident per 

day. We report the total nursing staff 

hours per resident per day, as well as 

the total nursing staff hours per resident 

per day for registered nurses, licensed 

practical nurses, and licensed 

vocational nurses. (Facility staffing 

measures reflected in Nursing Home 

Compare may be updated or revised in 

the future.) 

NFs are required to have adequate 

staff to give appropriate care to all 

residents. SNFs and NFs must have at 

least one registered nurse for at least 8 

consecutive hours per day, 7 days per 

week, and either a registered nurse, 

licensed practical nurse or licensed 

vocational nurse, and other nursing 

personnel on duty 24 hours per day, 

unless a waiver has been granted in 

accordance with § 483.30(c) or 

§ 483.30(d). Certain States may have 

more stringent nurse staffing 

specifications than the Federal 

requirements. 

Section 4801(e)(17)(B) of the Omnibus 

Budget Reconciliation Act of 1990 

(OBRA ’90) (Pub. L. 101–508, November 

5, 1990) required the Secretary to report 

the results of a study to the Congress on 

the appropriateness of establishing 

minimum caregiver-to-resident and 

supervisor-to-nurse ratios for Medicareand Medicaid-certified nursing homes. 

The purpose of the study was to 

examine the analytic justification for 

establishing minimum nurse staffing 

ratios for nursing homes. The study, 

entitled ‘‘Appropriateness of Minimum 

Nurse Staffing Ratios in Nursing 

Homes,’’ (Report to Congress, July 2000) 

was conducted in two phases. Phase I of 

the study http://www.cms.hhs.gov/ 

Medicaid/reports/rp700hmp.asp) 

examined whether an association exists 

between staffing levels in nursing 

homes and quality of care. Phase II of 

the study (http://www.cms.hhs.gov/ 

medicaid/reports/rp1201home.asp) 

examined the cost and benefits 

associated with establishing staffing 

minimums and expanding the data used 

in the multivariate analysis from three 

States to a more representative national 

sample. It included an exploration of 

more refined case mix classification 

methods and case studies to validate 

Phase I findings, while examining 

related issues affecting certified nurse 

aide recruitment and retention. In both 

Phase I and Phase II studies, the phrase 

‘‘nurse staffing’’ referenced all three 

categories of nurses and nurse aides: 

registered nurses, licensed practical 

nurses, and nurse aides. Based upon 

these studies, we do not believe 

sufficient evidence exists to warrant 

minimum nurse staffing ratio 

requirements. Abt Associates and CMS 

staff have completed a draft report with 

options for: (1) Collecting more accurate 

staffing data; (2) auditing the data 

collected; (3) transmitting the data; and 

(4) configuring the data so that they can 

be informative to the public when 

placed on our website. 

Consistent with our November 2002 

initiative to disseminate reliable 

information on nursing home quality for 

Medicare and Medicaid beneficiaries, 

our objective in finalizing the February 

27, 2004, proposed rule is to make 

staffing information available to the 

public to assist them in making 

informed decisions when choosing 

health care providers. This regulation 

provides consumers with staffing 

information on a day-to-day basis. 

III. Provisions of the February 27, 2004 

Proposed Rule 

On February 27, 2004, we published 

a proposed rule in the Federal Register 

entitled ‘‘Medicare and Medicaid 

Programs; Requirements for Long Term 

Care Facilities; Nursing Services; 

Posting of Nurse Staffing Information’’

(69 FR 9282). Below we summarize and 

discuss the proposed changes to the 

general conditions and requirements in 

§ 483.30, Nursing services. 

We proposed to revise § 483.30 by 

adding a new paragraph (e) that would 

require nursing homes to post nursestaffing information in accordance with 

section 941 of BIPA, specified as 

sections 1819(b)(8) and 1919(b)(8) of the 

Act. We proposed daily collection 

requirements for staffing information, 

identified categories of staff for which 

the provision would apply, and 

established record keeping 

specifications, that is, a specific form 

SNFs and NFs would use to display 

staffing information by shift. We also 

proposed requiring SNFs and NFs to 

make this information available to the 

public upon request and maintain the 

forms for 3 years or as required by State 

law, whichever is greater. 

In the February 27, 2004 proposed 

rule, we also noted that neither section 

1819(b)(8) nor section 1919(b)(8) of the 

Act specifies what constitutes ‘‘licensed 

and unlicensed nursing staff.’’ In the 

proposed rule, we interpreted ‘‘licensed 

and unlicensed nursing staff’’ to mean 

registered nurses, licensed practical 

nurses or licensed vocational nurses (as 

the term(s) are defined under State law), 

and certified nurse aides. 

We also proposed to revise § 483.30 

by adding a requirement that SNFs and 

NFs collect and display the resident 

census for each day. While collection of 

resident census information is not 

specifically required under section 941 

of BIPA, we believe that collection of 

this information is authorized under our 

general statutory authority as defined in 

sections 1819(f)(1) and 1919(f)(1) of the 

Act. These sections require the 

Secretary to ‘‘assure that requirements 

which govern the provision of care [in 

both SNFs and NFs] * * * and the 

enforcement of those requirements, are 

adequate to protect the health, safety, 

welfare, and rights of residents and to 

promote the effective and efficient use 

of public moneys.’’ We believe the 

addition of census information makes 

the nurse staffing data more meaningful 

and useful to the public and is in line 

with our rulemaking authority. 

Providing resident census data along 

with nurse staffing data gives consumers 

a context and information they can use 

to interpret the data and reach 

conclusions regarding the nurse staffing 

levels in relation to the resident 

population. 

We proposed to add a new 

§ 483.30(e)(1) that would specify the 

contents and format of the information 

in accordance with the statutory 

authority provided by BIPA, which 

mandates that the information must be 

‘‘displayed in a uniform manner.’’

Proposed § 483.30(e)(1) through 

§ 483.30(e)(3) would require that the 

nurse staffing and census information: 

• Include current nurse staffing 

numbers calculated as full time 

equivalents (FTEs) for each shift; 

• Include the daily resident census; 

• Be posted on the CMS Daily Nurse 

Staffing Form; and 

• Be displayed in a prominent place 

readily accessible to residents and 

visitors. 

IV. Analysis of and Responses to Public 

Comments Received on the February 

27, 2004 Proposed Rule 

We received a total of 82 timely items 

of correspondence from individuals, 

providers, national and regional health 

care professional associations and 

advocacy groups, State and local health 

organizations, labor unions, health care 

law firms, and others. Summaries of the 

public comments received and our 

responses to those comments are set 

forth below under the appropriate 

subject headings. The first section, 

‘‘Information Requirements,’’ includes 

comments and responses that primarily 

relate to the proposed requirements in 

§ 483.30(e)(1), that is, the proposed 

requirement to calculate full time 

equivalents (FTEs) for nursing staff and 

the proposed requirement to determine 

or verify resident census. The second 

section, ‘‘Form Use and Posting 

Requirements,’’ contains comments and 

responses regarding the requirements in 

§ 483.30(e)(2), that is, the proposed 

Federal Register / Vol. 70, No. 208 / Friday, October 28, 2005 / Rules and Regulations 62067 

CMS-specified form and the proposed 

requirements for displaying the form. 

The third section, ‘‘Public Access and 

Data Retention Requirements,’’ includes 

comments and responses regarding the 

proposed requirements in § 483.30(e)(3) 

for maintaining data and making them 

publicly available. The fourth section, 

‘‘General Comments’’ includes 

comments about the preamble 

discussion and other issues that fall 

outside the specified requirements of 

the February 27, 2004, proposed rule. 

A. Information Requirements, Proposed 

§ 483.30(e)(1) 

In § 483.30(e)(1), we proposed 

requiring that SNFs and NFs on a daily 

basis, at the end of each shift, calculate 

the number of full time equivalents 

(FTEs) for the following licensed and 

unlicensed nursing staff directly 

responsible for resident care: (A) 

Registered nurses (RN); (B) Licensed 

practical nurses (LPN) or licensed 

vocational nurses(LVN) (as defined 

under State law); and (C) Certified nurse 

aides. In addition we proposed 

requiring SNFs and NFs to determine or 

verify the resident census on a daily 

basis. 

1. Using Full Time Equivalents (FTEs) 

Comment: A number of commenters 

voiced their disagreement with the 

proposal to require facilities to post 

staffing data according to FTEs. 

Commenters stated that the requirement 

‘‘goes beyond the law’’ and pointed out 

that section 941 of BIPA requires only 

that nursing facilities post the number 

of licensed and unlicensed staff for each 

shift every day. In addition, commenters 

pointed out that in our December 24, 

2002 memorandum sent to nursing 

facilities, we gave facilities discretion 

with respect to how the nurse staffing 

and census data are to be displayed, 

provided that the required information 

is displayed in a uniform manner in a 

clearly visible place. 

Commenters further indicated that the 

use of FTEs may make it difficult for 

families and the public to understand, 

and staff time will be wasted explaining 

FTEs to visitors. 

Response: We agree with the 

commenters that displaying nurse 

staffing totals using FTEs could be 

confusing and may not accurately 

represent the number of staff providing 

care during a given time period. For 

example, 1 LPN FTE during an 8-hour 

(3 p.m. to 11 p.m.) shift could mean that 

1 LPN worked the entire 8-hour shift. 

However, it could also mean that 2 

LPNs worked 4 hours each from 3 p.m. 

to 7 p.m. and that no LPNs worked in 

the unit from 7 p.m. to 11 p.m. Clearly, 

displaying FTEs does not provide 

sufficient information to determine the 

number of staff present at a given point 

in time, which is important for families 

and visitors to know. 

Therefore, instead of requiring 

facilities to post FTEs, in this final rule 

we are requiring facilities to post the 

number of nursing staff by category (RN, 

LPN or LVN, and CNA) providing direct 

care to residents during each shift and 

the actual hours worked by the staff 

during each shift (for example 7 p.m. to 

11 p.m.). More specific information 

about the required data and the method 

for displaying the data are presented 

later in this preamble. 

2. Suggestions for Additional Data 

Comment: A few commenters stated 

that staffing level data would not be 

helpful to the public unless information 

about resident acuity was included. One 

commenter indicated that without 

consideration of the acuity of the 

residents the posting of staffing will be 

meaningless. 

Response: We agree that it would be 

valuable to have the acuity information 

posted along with the staffing data. 

However, there are wide variations in 

the types of populations served in SNFs 

and NFs. In addition, there are no 

accepted standardized measures of 

resident acuity that can be applied 

across all facilities. Therefore, in this 

final rule, we are not requiring facilities 

to post resident acuity level data. 

Comment: One commenter stated that 

instead of posting the number of staff, 

the facility should post the number of 

hours of training and the type of 

training the staff receives. 

Response: We appreciate the 

comment, but requiring the posting of 

information about staff training is not 

within the scope of this regulation, 

which is to develop requirements for 

implementation and codification of the 

requirements of section 941 of BIPA, 

which requires the posting of specific 

nurse staffing information. We would 

point out that requiring facilities to 

identify the number of each category of 

nursing staff (that is RN, LPN, LVN and 

CNA) provides the public with some 

degree of knowledge about their 

education and training. 

Comment: Many commenters stated 

that nurse staffing data are not sufficient 

to inform families and the public about 

the quality of care in a facility. 

Response: While we are in agreement 

with commenters who noted that the 

provision of nurse staffing data alone is 

insufficient to evaluate quality of care 

within a facility, we are currently 

conducting a wide range of regulatory 

and research activities focused on 

nursing home quality assessment and 

improvement. For example, at our 

Nursing Home Compare website, we 

present quality measures, deficiency 

information, and other basic 

information about facility performance. 

We also encourage consumers to visit 

facilities. 

Nurse staffing information is critical 

data to help consumers make informed 

decisions when selecting a facility. 

Census information provides a basis for 

consumers to understand the relative 

number of nursing staff providing direct 

care to all of the residents during each 

shift. We believe that implementing the 

nurse staffing requirements in section 

941 of BIPA, as well as establishing a 

requirement for collecting and posting 

census data offers the public access to 

updated data and other information that 

can assist them in making healthcare 

decisions. 

Comment: Some commenters stated 

they would like the nurse staffing form 

to include all the staff working on a 

particular shift, including medical 

records reviewers, MDS coordinators, 

directors of nursing, persons conducting 

interdisciplinary team meetings, and 

others who work with residents at some 

level. 

Response: Activities such as data 

collecting, conducting and coordinating 

meetings, and reviewing records are 

outside the scope of BIPA requirements. 

However, facilities may choose to 

provide that information separately as 

part of the same documentation that is 

used to display nurse-staffing data. 

Therefore, in this final rule, facilities 

have been given discretion with respect 

to the manner in which the nurse 

staffing and census data are displayed, 

provided that the required information 

is displayed in a uniform manner in a 

clearly visible place. 

Comment: One commenter suggested 

that we require staff-to-resident ratios 

on the form. 

Response: As we stated in the 

preamble of the February 27, 2004 

proposed rule, we do not believe 

sufficient evidence exists to warrant 

minimum nurse staffing ratio 

requirements. In addition, the level of 

care needed and the resident acuity 

level varies from facility to facility, 

which limits the utility of those data. 

However, a facility is not prevented 

from posting that information should 

they choose to do so. Therefore, in this 

final rule facilities have been given 

discretion with respect to the manner in 

which the nurse staffing and census 

data are displayed, provided that the 

required information is displayed in a 

uniform manner in a clearly visible 

place. 

62068 Federal Register / Vol. 70, No. 208 / Friday, October 28, 2005 / Rules and Regulations 

Comment: Some commenters stated 

the forms should include the names of 

each staff member at work during the 

shift. 

Response: We appreciate the 

comment but do not believe that 

facilities should be required to post 

names of staff. Such a requirement 

would increase the paperwork and 

recordkeeeping burden on SNFs and 

NFs without serving the purpose of 

making staff level information available. 

We believe collecting and updating staff 

data would be more time consuming. In 

this final rule, facilities have been given 

discretion to create their own document 

that may include more information than 

the mandated data. 

Comment: Some commenters stated 

that the nurse staffing form should 

include the name and signature of the 

person who completes it, so that the 

public knows to whom questions should 

be directed. 

Response: Facilities may wish to 

include contact information for 

someone who can answer questions. 

(This is likely to be the nursing 

supervisor on each shift, not necessarily 

the person who completed the 

information that is posted.) Facilities 

certainly may post information that is 

not required under this final rule. 

However, in this final rule, to minimize 

the burden of these requirements, we 

are not specifically requiring that 

facilities include that information. 

3. Impact of the Requirements on 

Facilities 

Comment: Many commenters 

expressed their concern that the process 

of collecting and posting of data will 

take nursing staff away from resident 

care. 

Response: We appreciate the 

commenters’ concerns. However, this 

final rule does not require that nursing 

staff complete and update this 

information, and we do not expect that 

preparing and posting the information 

will take much time. Clerical staff 

should be able to prepare and post the 

data quickly. Therefore, we are not 

requiring specific personnel to collect, 

verify, or post the data that have to be 

displayed daily. 

4. Clarification of Terms 

Comment: Some commenters were 

not sure how to determine which 

nursing staff should be included under 

section 941 of BIPA. They asked for 

clarification of the meaning of ‘‘directly 

responsible for resident care.’’

Response: In this final rule, we clarify 

the term ‘‘directly responsible for 

resident care’’ to mean that an 

individual is providing direct care to 

residents or is directly responsible for 

care provided to residents. Providing 

direct care means that an individual has 

responsibility for the residents’ total 

care or some aspect of the residents’

care. Resident contact is an intrinsic 

part of direct care. ‘‘Directly responsible 

for resident care’’ includes, but is not 

limited to, such activities as assisting 

with activities of daily living (ADLs), 

performing gastro-intestinal feeds, 

giving medications, supervising the care 

given by CNAs, and performing nursing 

assessments to admit residents or notify 

physicians about a change in condition. 

For example, when an RN is assigned 

to submit MDS data to a State agency for 

the day, that RN would not be regarded 

as providing direct care. However, if the 

same RN is assigned to the unit for 

providing resident care, then the hours 

worked by the RN in the unit would be 

included in the posted data. Therefore, 

in this final rule, we require only the 

data related to the number of direct care 

staff on each shift be posted. 

5. Survey Issues 

Comment: Many commenters stated 

that this data collection is a redundant 

process as the facilities already collect 

and report those data to surveyors. 

Response: We are aware that facilities 

are required to provide information, 

including the actual number of direct 

care staff and direct care hours worked 

to us. Therefore, this final rule codifies 

section 941 of BIPA, which specifically 

requires the posting of nurse staffing 

information. The purpose of this final 

regulation is to make the data available 

to the public on a daily basis. Facilities 

should be able to reduce the burden by 

providing surveyors with the staffing 

level data they collect and post every 

day for families and the public. This 

would eliminate the need to collect the 

data twice. 

Comment: Many commenters stated 

that CMS needs an enforcement 

mechanism to ensure accuracy of the 

data. Some commenters suggested that 

the data be transmitted to CMS for 

validation and others stated that 

surveyors must validate it. Other 

commenters stated that the validation is 

much more reliable when family 

members or others who are in the 

facility visiting at a particular time 

check the validity of the posted data, as 

they can verify the number of staff 

working at a given time. 

Response: As we discussed in the 

preamble of the February 27, 2004 

proposed rule, we would expect 

facilities to retain this information in 

order to be able to produce it if 

requested by a State Agency, the public, 

or CMS. While surveyors are aware of 

the nurse staff posting requirements and 

can check for compliance at any time 

and report their findings to us, we do 

not currently require them to do so. (We 

are currently working to update nursing 

home survey requirements and revise 

the State Operations Manual (SOM) to 

provide additional guidance for 

surveyors and facilities.) Sending the 

information to us would not serve the 

purpose of validating the accuracy of 

the displayed information. Family 

members, ombudsmen, and others 

visiting the facilities will be able to 

verify the accuracy of the data posted, 

as they can check the number of nursing 

staff in realtime. 

6. Resident Census Data 

We proposed at § 483.30(e)(1)(ii) that 

SNFs and NFs determine or verify the 

resident census on a daily basis. Forty 

percent of the comments we received 

included a comment about posting of 

census data. 

Comment: Many commenters 

supported the presentation of the census 

data on the staffing form. 

Response: We appreciate your 

comments and agree that providing 

resident census data gives families and 

residents a frame of reference by which 

they can view the nurse-staffing level 

data. The number of nursing staff alone, 

without the census data, may not be 

meaningful. Census information 

provides a basis for inferring the 

number of nursing hours available to 

residents. In this final rule, we require 

that census data be posted daily. 

Comment: Some commenters did not 

support the posting of census data and 

stated that it is of little value if staffing 

ratio or acuity of the resident population 

is not captured. 

Response: Although we do not require 

that resident acuity level be posted, we 

believe it is important for consumers to 

have information about the number of 

residents in the facility to provide a 

context for understanding of the nursestaffing data. Facilities that have been 

posting nurse staffing information since 

BIPA was implemented report that 

posting staff data has helped them, as it 

has addressed families’ questions 

regarding the number of staff working at 

a given time. Acuity levels across 

facilities vary tremendously, and 

currently there are no generally 

accepted standard measures. 

Additionally, requiring the posting of 

this information is beyond this scope of 

the statute. Therefore, in this final rule, 

we require census data to be posted 

daily. 

Federal Register / Vol. 70, No. 208 / Friday, October 28, 2005 / Rules and Regulations 62069 

B. Form Use and Posting Requirements, 

Proposed § 483.30(e)(2) 

We proposed at § 483.30(e)(2)(i) to 

require SNFs and NFs to use a CMSspecified form (Daily Nurse Staffing 

Form) to enter the information specified 

in paragraph (e)(1) of this section, and 

we proposed at § 483.30(e)(2)(ii) to 

require that the completed Daily Nurse 

Staffing Form be posted in a prominent 

place readily accessible to residents and 

visitors. 

Approximately 90 percent of 

commenters had comments concerning 

the proposed requirement for use of the 

CMS-specified form; about 30 percent of 

commenters had comments about where 

the form should be posted. 

1. CMS-Specified Form 

Comment: Many commenters 

expressed concerns that the CMSspecified form does not meet their 

facility’s staffing patterns, and that the 

calculations would be very burdensome 

if a facility does not use standard 8-hour 

shifts or has overlapping shifts. 

Commenters stated that the nursing 

shortage has caused them to use 2-hour 

shifts and 4-hour shifts to help meet the 

needs of their residents. Others stated 

that nurses may work 12 hours just on 

a weekend to cover the shortage in a 

facility. Commenters stated that 

alternate staffing patterns cannot be 

captured on the proposed CMSspecified form. Some commenters also 

stated that requiring the use of a CMSspecified form does not conform to the 

information in the December 24, 2003 

CMS State agency directors’ letter. 

Response: After reviewing the 

comments on the proposed mandatory 

form, we reviewed the issues raised by 

the commenters and found that many 

facilities have non-standard or 

overlapping shifts. For example 1 unit 

within a facility may have 1 RN working 

7 a.m. to 7 p.m., 1 LPN working 7 a.m. 

to 3 p.m., 1 LPN working 8 a.m. to 4 

p.m., 2 CNAs working 6 a.m. to 2 p.m., 

4 CNAs working 7 a.m. to 3 p.m., and 

2 CNAs working 7 a.m. through 7 p.m. 

Overlapping shifts ensure that a unit has 

sufficient staffing available during the 

busiest times of the day, for example, 

giving medications, preparing end stage 

renal disease (ESRD) patients to be 

transported for dialysis, or assisting 

residents at mealtimes. To address these 

varied staffing patterns, many facilities 

have developed their own forms to 

display nurse staffing data and have 

found their own forms to be useful and 

informative. 

Therefore, we have concluded that 

facilities should have the flexibility to 

develop their own documents for 

displaying the required information. 

Note that in the context of this final 

rule, we are using the term ‘‘document’’

to refer to the medium a facility may use 

to display nurse staffing information. 

The ‘‘document’’ may be a form or a 

spreadsheet, as long as all the required 

information is displayed in a clearly 

visible place. Further, the information 

on the document should be displayed in 

a uniform manner and presented in a 

clear and readable format. If requested, 

hard copies of the document must be 

made available to families and the 

public, as specified in § 483.30(e)(3)(i) 

of the proposed rule and § 483.30(e)(3) 

of this final rule. 

The following is an example of one 

method for displaying nurse staffing 

information, using the information for 

one shift in a 24-hour period. 

Name of the Facility: 

Sample Nursing Home 

Date: January 24, 2005 

RESIDENT CENSUS AT THE START OF THE SHIFT: 88 

Shift Category of staff Actual hours worked Staffing total 

7 a.m.–3 p.m. ................ Licensed ....................... RN ................................. 1 RN 7 a.m.–3 p.m. .........................

2 RN 7 a.m.–11 a.m. 

1 RN 11 a.m.–3 p.m. 

2.5 RNs. 

LPN/LVN ...................... 2 LPN 7 a.m.–3 p.m. ....................... 2 LPNs. 

Non-Licensed ............... CNA .............................. 5 CNA 7 a.m.–3 p.m. ....................... 5 CNAs. 

3 p.m.–11 p.m. 

2. Time Frame for Posting Information 

Comment: Several commenters 

strongly opposed the proposal to delay 

calculating and posting nurse staffing 

data until the end of the shift. 

Commenters stated that data posted at 

the end of a shift are not of any use to 

resident families since it is after the fact. 

Some commenters pointed out that CMS 

agreed to the form being posted closer 

to the beginning of the shift in the 

December 24, 2003 State Agency 

Directors’ letter. 

Response: We agree that it is 

preferable for families and visitors to 

have the opportunity to view nursestaffing data that reflects the staffing 

level at the time they are visiting the 

facility. Therefore, in this final rule, we 

are requiring facilities to post the 

information at the beginning of the shift. 

If any changes to the information posted 

are needed, they must be made as soon 

as possible. 

Comment: Some commenters stated 

that the staffing sheet should show the 

staffing levels for the entire day, not just 

for one shift at a time. 

Response: We agree families may be 

interested in knowing the staffing levels 

for the entire 24-period, rather than 

staffing levels for a single shift. 

However, it is also important to have 

accurate and updated information 

posted each shift. If families are 

interested in staffing levels for other 

shifts, they can ask to see data from 

those shifts. 

Comment: One commenter expressed 

concern regarding identifying the first 

shift of the day. The commenter pointed 

out that a day starts after midnight; 

therefore, the night shift would be the 

first shift. 

Response: Standard practice in most 

facilities is to consider the start of the 

day as the morning shift. However, there 

are variations in shifts among facilities. 

Some have night shifts starting at 10 

p.m.; some at 11 p.m.; and some at 12 

midnight. Additionally, the length of 

shifts vary among facilities. Some have 

12-hour shifts and others 8-hour or even 

4-hour shifts. While we are requiring 

uniformity in the displaying of the 

nurse-staffing level data for each shift, 

we are providing facilities with the 

flexibility to identify the shift 

breakdowns so the 24-hour staffing 

coverage can be determined in an 

accurate manner. 

Comment: Many commenters stated 

that we should require that the staffing 

form be posted within 1 hour of the start 

of the shift; others suggested 2 hours. 

Response: Although we are requiring 

that facilities post nurse staffing data at 

the beginning of the facility-specified 

shift, we do not believe it is necessary 

to dictate a particular time frame. 

Staffing levels may change 

unexpectedly, and we believe facilities 

should have the flexibility to ensure the 

62070 Federal Register / Vol. 70, No. 208 / Friday, October 28, 2005 / Rules and Regulations 

accuracy of the information before 

posting it. 

Comment: Some commenters asked, 

‘‘which census should be recorded, the 

census at midnight or the average 

census for the day?’’

Response: The facility must post the 

census at the beginning of each shift. 

For example, the 7am to 3pm shift 

would post the census at 7am and so 

forth. In most facilities, the census data 

can be obtained from the shift report 

that nursing supervisors give to the next 

shift. 

3. Clarification of Terms 

Comment: Some commenters stated 

that the term ‘‘uniform manner’’ needs 

to be clarified, referring to the 

requirement that the information must 

be displayed in a uniform manner. 

Response: ‘‘Uniform manner’’ means 

that certain required information must 

be displayed on or in a document of the 

facility’s choosing in a format that 

assures the information can be read and 

clearly understood by the reader. The 

required information includes: (1) The 

name of the facility; (2) the date, (3) the 

resident census; (4) each facility shift for 

a 24 hour period; and (5) the specific 

hours worked, per shift, aggregated by 

category (registered nurses, licensed 

practical nurses or licensed vocational 

nurses (as the term(s) are defined under 

State law), and certified nurse aides). 

For example: Three RNs worked for 4 

hours each during an 8-hour shift, 

which started at 7 a.m. and ended at 3 

p.m. Two of the RNs worked from 7 a.m. 

to 11 p.m., and one RN worked from 11 

a.m. to 3 p.m. The facility’s posting 

would show the shift (7 a.m. to 3 p.m.), 

the specific work hours (2 RNs from 7 

a.m. through 11 p.m., and 1 RN from 11 

a.m. through 3 p.m.), and the total 

number of RNs on duty during the shift 

(1.5). Note that although 3 RNs worked 

for some part of the shift, the total 

number displayed would be 1.5 because 

each RN worked for only half the 8-hour 

shift. The total number of RNs would be 

3 only if all 3 RNs worked for the entire 

8-hour shift. 

The data should be updated at the 

beginning of every shift to reflect actual 

hours worked by registered nurses, 

licensed practical nurses, and nurse 

aides during the facility-identified shift 

in question and the total hours worked. 

The document on which the 

information is displayed should be clear 

and readable to residents and visitors. 

The facilities have discretion with 

respect to displaying the nurse staffing 

and census data provided the 

information is in a clearly visible place 

and contains the required data elements. 

4. Location of Form 

Comment: Some commenters stated 

that the daily nurse staffing form should 

be posted on each unit. 

Response: The facilities can choose to 

post information on each unit. We 

require that the nurse staffing 

information be posted in a visible and 

easily accessible area that is common to 

visitors and residents. If a facility posts 

the information on each unit, for just 

that unit, we would still expect all nurse 

staffing information to be posted in a 

visible and easily accessible common 

area. 

Comment: Many commenters voiced 

their support for the requirement that 

the information is to be posted in a 

prominent place readily accessible to 

residents and visitors. 

Response: We appreciate the support 

and agree that it is important for visitors 

and residents to be able to locate the 

information. Therefore, in this final 

rule, we require that the data be 

displayed in a clear and readable 

manner and be posted in a prominent 

place that is readily accessible to 

residents and visitors. 

5. Format and Instructions 

Comment: Some commenters stated 

that CMS needs to mandate the size of 

the paper or the size of the font to 

ensure that the form is readable. 

Response: We are requiring facilities 

to display the information in a clear and 

readable manner. Facilities are free to 

use the paper and font they choose, as 

long as the information is displayed in 

a manner that meets these requirements. 

We believe facilities should have the 

flexibility to determine how best to 

display the information so that it is clear 

and readable. Therefore, in this final 

rule, we require that the data be 

displayed in a clear and readable 

manner. 

Comment: Some commenters wanted 

more precise instructions for completing 

the required nurse staffing data. 

Response: As discussed earlier, after 

reviewing the comments on the 

feasibility of using a standardized form 

regarding variations in shifts and 

staffing patterns, we have concluded 

that facilities must have the flexibility to 

capture daily nurse staffing data. This 

final rule does not prevent facilities 

from providing additional data. 

C. Public Access and Data Retention 

Requirements, Proposed § 483.30(e)(3) 

We proposed public access and data 

retention requirements at § 483.30(e)(3). 

Forty percent of the commenters had a 

comment about the proposed access 

requirements at § 483.30(e)(3)(i) that 

would require SNFs and NFs to make 

the Daily Nurse Staffing Form(s) 

available to the public upon request. 

Sixty percent of the comments received 

included a comment about the proposed 

data retention requirements. 

Comment: A few commenters agreed 

with the proposed requirement and 

suggested that facilities keep the forms 

in a notebook at the front desk so the 

public would have easy access to them. 

The commenters further stated that both 

oral and written requests to see the 

forms should be honored; records 

should be provided within 24 hours of 

the request; and records should be 

copied at costs not to exceed 

community photocopying standards and 

the actual cost of clerical time to copy 

the documents. 

Response: Facilities have the 

flexibility to decide how to make the 

documents accessible to the public. In 

this final rule, we require that upon oral 

or written request, facilities must make 

the nurse staffing data available to the 

public for review. Furthermore, we 

require that facilities must provide, as 

requested, photocopies of the 

documents at a cost not to exceed the 

community standard. 

This requirement is similar to the 

current requirements at 42 CFR 

483.10(b)(2) that the resident or his or 

her legal representative has the right—

(i) Upon an oral or written request, to 

access all records pertaining to himself 

or herself including current clinical 

records within 24 hours (excluding 

weekends and holidays); and (ii) After 

receipt of his or her records for 

inspection, to purchase at a cost not to 

exceed the community standards, 

photocopies of their records or any 

portion of them upon request after a 2 

working days advance notice to the 

facility. 

We proposed that the Daily Nurse 

Staffing Form(s) be maintained for a 

minimum of 3 years, or as required by 

State law, whichever is greater. It is our 

expectation that a SNF or NF will retain 

this information in keeping with 

standard business practices and be able 

to produce it if requested by the State 

Agency or the public. 

Comment: A few commenters agreed 

with the proposed requirement that the 

forms should be retained for 3 years or 

as required by State law, whichever is 

greater. However, many other 

commenters stated that a requirement to 

maintain records for 3 years would be 

burdensome, unnecessary, and costly in 

terms of wasted time, paper, storage 

space, and personnel. One commenter 

suggested reducing the requirement to 1 

year or deleting it altogether. Another 

commenter suggested retaining the 

Federal Register / Vol. 70, No. 208 / Friday, October 28, 2005 / Rules and Regulations 62071 

records only until the next certification 

survey. 

Response: We understand the 

commenters’ concerns and have 

concluded that it is not beneficial for 

facilities to retain the nurse staffing 

records for 3 years. Therefore in this 

final rule, we are requiring facilities to 

retain nurse staffing data for only 18 

months. Since nursing home surveys 

generally are conducted every 9 to 15 

months, retaining the data for 18 

months ensures their availability to 

surveyors. It also ensures that records 

are available for a reasonable period of 

time if residents or the public want to 

see them. 

Comment: Some commenters stated 

that maintaining the nurse staffing data 

are redundant, since staffing schedules, 

pay roll, and other data typically 

maintained by facilities would provide 

the same information. 

Response: We understand that 

facilities keep certain records that 

would contain the same information. 

However, this information is not 

maintained in a format that would 

enable families and the public to 

determine staffing levels across the 

facility on a given day or days. The data, 

as displayed, are different from the data 

acquired from payroll records, as 

payroll records contain only the hours 

each staff person worked in a given pay 

period, not whether the staff person 

provided direct care to residents or 

performed some other duty, such as 

coordinating MDS data. Furthermore, 

section 941 of BIPA mandates that 

facilities post nurse staffing information 

daily and make the posted information 

available to the public. Therefore, in 

this final rule, we require the facilities 

to post daily nurse staffing data for 

specified direct care nursing staff. 

Comment: A commenter stated that 

the retention of records is not necessary 

since the information will not be 

submitted to an agency. 

Response: The commenter is correct 

that we are not requiring data to be 

submitted to an agency; however, the 

statute requires the information be 

available to the public. Therefore, in 

this final rule, we require that nurse 

staffing data to be maintained for a 

minimum of 18 months which will also 

cover the annual survey period. 

V. General Comments on the Proposed 

Rule 

A number of commenters included 

discussions on topics related to nurse 

staffing, but not specifically proposed in 

the February 27, 2004 rule. The 

comments that follow were considered 

out of scope and as such were not part 

of our consideration in this final rule. 

Comment: Several commenters stated 

that the BIPA requirements are helpful, 

although some commenters expressed 

concerns related to specific 

implementation requirements. One 

commenter reported that posting of the 

nurse staffing form in their facility for 

the past year has posed no problem at 

all. The commenter stated that it has 

even helped the facility resolve certain 

issues with family members. 

Response: We appreciate the support; 

it is encouraging to know that facilities 

have been able to comply with our 

requirements and have found the 

display of the information to be helpful. 

Comment: A few commenters wanted 

to know if these requirements apply to 

swing beds and hospitals. 

Response: The requirements in this 

proposed rule apply only to nursing 

facilities, that is, SNFs and NFs. 

Comment: One commenter stated that 

‘‘a better way would be to require a 

resident’s family member or guardian to 

visit the resident a minimum of once 

per week to observe the care of the 

resident and report any concerns to the 

facility management or, if unresolved, to 

a liaison to the government.’’

Response: Family members of 

residents are free to visit and observe 

the care given to the resident and report 

concerns to the facility, the State survey 

agency or the ombudsman. Requiring a 

resident’s family member or guardian to 

visit the resident a minimum of once 

per week is beyond the scope of this 

final rule. 

Comment: One commenter 

interpreted the preamble language that 

discusses the Nursing Home Quality 

Initiative as being a part of the proposed 

requirement. The commenter stated that 

the background information contradicts 

itself. The referenced section states, 

‘‘Although staffing is not an explicit part 

of this initiative * * *’’ and ‘‘Based 

upon these studies, at this time, we do 

not believe sufficient evidence exists to 

warrant minimum nurse staffing ratio 

requirements.’’

Response: We would like to clarify 

that the ‘‘initiative’’ that is being 

discussed is the Nursing Home Quality 

Initiative and is not part of this final 

regulation. The preamble to the 

February 27, 2004 proposed rule states 

that we do not believe sufficient 

evidence exists to warrant minimum 

nurse staffing ratio requirements based 

on the study discussed. In our 

discussion of the value of the data 

required by this regulation, for example 

we noted, ‘‘Consistent with our 

November 2002 initiative to disseminate 

and publish reliable information on 

nursing home quality for Medicare and 

Medicaid beneficiaries, our objective is 

to make staffing information available to 

the public to assist them in making 

informed decisions when choosing 

health care providers.’’

Comment: One commenter stated that 

requiring a nursing home to post the 

FTE and census data does not ensure 

nurse staffing levels will increase due to 

the market demand created by an 

informed public. 

Response: We agree with the 

comment. Clearly, providing 

information to consumers about nurse 

staffing levels will not be sufficient to 

increase staffing levels. However, the 

intent of the requirements in this rule is 

to make staffing information available to 

residents and visitors at any given time. 

1. Staffing Ratios 

Comment: A few commenters stated 

that they were not in agreement with the 

contention that the Minimum Staffing 

Ratios in Nursing Home Phase I and 

Phase II fail to provide sufficient 

evidence to warrant minimum staffing 

ratio requirements. 

Response: We appreciate the 

comments. However, we do not believe 

sufficient evidence exists to warrant 

minimum nurse staffing ratio 

requirements. There exists a great 

variation in the population served in 

nursing facilities, not just in the acuity 

level but also in the experience and 

credentials of staff. Additionally, 

requiring a specific nurse-to-resident 

ratio is beyond the scope of this final 

rule. 

Comment: Some commenters urged 

CMS to release Abt Associates’

recommendations to the public as soon 

as they are made so that the facilities 

can implement them in a timely 

manner. 

Response: We appreciate the 

comments and will share them with our 

staff overseeing the Abt Associate study. 

The study is mentioned in the preamble 

of this final rule as it is related to 

staffing, but it is not directly related to 

these requirements as this rule codifies 

the BIPA 941 requirements. 

Comment: Some commenters 

suggested that it would be a good idea 

to use the data in the Online Survey 

Certification and Reporting (OSCAR), 

which is derived from the 671 Form that 

the State survey agency uses when 

conducting facility surveys. 

Response: We agree that the data can 

be used on the 671 Form. The facilities 

have the flexibility to use the data to 

reduce the burden of collection when 

the same data are to be used in other 

documents or reports. However, this 

rule is focused on codifying the BIPA 

941 requirements. 

62072 Federal Register / Vol. 70, No. 208 / Friday, October 28, 2005 / Rules and Regulations 

VI. Provisions of the Final Rule 

Section 483.30(e)(1) Information 

Requirements 

This final rule requires SNFs and NFs 

to post, for each shift, on a daily basis 

the actual hours of and total number of 

hours worked by, licensed and 

unlicensed nursing staff who are 

directly responsible for resident care on 

each shift in the facility. In the February 

27, 2004 proposed rule, we noted that 

neither section 1819(b)(8) of the Act nor 

section 1919(b)(8) of the Act specifies 

what constitutes licensed and 

unlicensed nursing staff. In this final 

rule, we interpret the term ‘‘licensed 

nursing staff’’ to mean registered nurses 

(RNs); licensed practical nurses (LPNs) 

or licensed vocational nurses (LVNs), 

and ‘‘unlicensed nursing staff’’ to mean 

certified nurse aides (CNAs), as defined 

under State law. 

As discussed in section IV of the 

preamble of this final rule, we use the 

term ‘‘directly responsible for resident 

care’’ to mean that an individual is 

providing direct care to residents or is 

supervising those who provide direct 

care to residents and has the 

responsibility for residents’ total care or 

some aspect of residents’ care. Resident 

contact is the intrinsic part of direct 

care. ‘‘Directly responsible for resident 

care’’ includes, but is not limited to, 

those activities as assisting with 

activities of daily living (ADLs), 

performing gastro-intestinal feeds, 

giving medications, supervising the care 

given by CNAs, and performing nursing 

assessments to admit residents or 

notifying physicians about a change in 

condition. 

Therefore, in this final rule, we 

require only nursing staff assigned and 

responsible for direct resident care 

under the categories of RN, LPN/LVN 

and CNA to be captured in the daily 

nurse staffing data. This final rule does 

not require data collection on other 

staff, volunteers, or feeding assistants. 

This final rule provides the flexibility to 

facilities to post more data if they 

choose to do so to fit the individual 

facility needs. 

In addition, SNFs and NFs must post 

the resident facility census and update 

the data as needed. 

Section 483.30(e)(1) Required Data 

Elements 

On a daily basis, at the beginning of 

the shift, NFs and SNFs must post the 

following data: 

1. Facility Name 

2. Current Date 

3. Resident Census 

4. Facility-specific shifts for the 24- 

hour period, (for example 7 a.m. 

through 3 p.m., 3 p.m. through 11 p.m., 

and 11 p.m. to 7 a.m.). 

5. Categories of nursing staff 

employed or contracted by the facility, 

per shift. 

6. Actual time worked for the 

specified categories of nursing staff, 

including split shifts. 

7. Number of nursing staff working 

per shift 

Section 483.30(e)(2) Posting 

Requirements 

In the February 27, 2004 proposed 

rule, we proposed that SNFs and NFs 

post, on a CMS-specified form, 

information on a daily basis that 

includes the date, the name of the 

facility, the total number of licensed and 

unlicensed nursing staff who are 

directly responsible for resident care 

and the specific hours they work. 

However, in this final rule, we deleted 

the required use of a CMS-specific form. 

Nurse staffing data must be displayed in 

a clear and readable format and be 

posted in a prominent place readily 

accessible to residents and visitors. 

However, we are not mandating a 

specific form be used, and we are 

providing facilities the flexibility to use 

the form or format which best meets 

their needs. 

We proposed requiring facilities to 

post a CMS-specified form at the end of 

the shift. However, this final rule 

requires facilities to post nurse staffing 

information at the beginning of the shift. 

In addition, we do not require facilities 

to post the number of FTEs on the form 

because we determined, based on public 

comments received on the February 27, 

2004 proposed rule, that the process of 

calculating FTEs would be burdensome 

for facilities and the data collected 

might not be comprehensible to 

residents and visitors. 

Section 483.30(e)(3) Public Access and 

Data Retention Requirements 

SNFs and NFs must make their daily 

nurse staffing records available to the 

public for review at a cost not to exceed 

the community standard. 

Section 483.30(e)(4) Facility Data 

Retention Requirements 

SNFs and NFs must maintain nurse 

staffing records for 18 months or as 

required by State law, whichever is 

greater. This covers the annual survey 

period and gives the surveyors the 

opportunity to verify the records if they 

choose to do so. 

VII. 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 before 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. 

Below is a summary of the 

information collection requirements in 

this regulation: 

Section 483.30 Nursing Services 

In summary, section 483.30(e)(2) 

requires that long-term care facilities 

use the CMS-specified form (Daily 

Nurse Staffing Form) to enter the 

information specified in paragraph (e)(1) 

of this section; and to post the 

completed Daily Nurse Staffing Form in 

a prominent place readily accessible to 

residents and visitors. 

The burden associated with this 

requirement is the time and effort it will 

take for the facility to complete the form 

and post it. Currently, there are 16,473 

participating nursing homes. We 

estimate a total of 5 minutes to fill in the 

information per day. We further 

estimate that it will require facilities 

30.42 hours each on an annual basis to 

meet these collection requirements. 

Section 483.30(e)(3) requires the 

facility to make the information 

required in § 483.30(e)(1)–(2) available 

to the public and to maintain 

documentation. 

The burden associated with this 

requirement will be the time it will take 

for the facility to retrieve the 

documented information being 

requested. We believe this requirement 

to be usual and customary business 

practice; therefore, the burden for this 

collection requirement is exempt under 

5 CFR 1320.3(b)(2) and 5 CFR 

1320.3(b)(3). 

VIII. Regulatory Impact 

We have examined the impact of this 

rule as required by Executive Order 

12866 (September 1993, Regulatory 

Planning and Review), the Regulatory 

Flexibility Act (RFA) (September 16, 

1980, Pub. L. 96–354), section 1102(b) of 

Federal Register / Vol. 70, No. 208 / Friday, October 28, 2005 / Rules and Regulations 62073 

the Act, the Unfunded Mandates Reform 

Act of 1995 (Pub. L. 104–4), and 

Executive Order 13132. Executive Order 

12866 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 one year). 

This rule does 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 

entities. For purposes of the RFA, small 

entities include small businesses, 

nonprofit organizations, and 

government agencies. According to the 

Small Business Administration (SBA) 

approximately 53 percent of all SNFs 

and NFs generate revenues of $11.5 

million or less in a one year period, and 

are considered small entities. 

Individuals and States are not included 

in the definition of small entities. The 

only burden associated with this rule is 

the information collection burden 

associated with collecting and posting 

nurse staffing data. We are not preparing 

an analysis for the RFA because we have 

determined that this 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. This analysis must conform to 

the provisions of section 604 of the 

RFA. For purposes of section 1102(b) of 

the Act, we define a small rural hospital 

as a hospital that is located outside of 

a Metropolitan Statistical Area and has 

fewer than 100 beds. We are not 

preparing an analysis for section 1102(b) 

of the Act because we have determined 

that this final rule will not have a 

significant impact on the operations of 

a substantial number of small rural 

hospitals because it applies only to 

SNFs and NFs. 

Section 202 of the Unfunded 

Mandates Reform Act of 1995 also 

requires that agencies assess anticipated 

costs and benefits before issuing any 

rule that may result in expenditure in 

any one year by State, local, or tribal 

governments, in the aggregate, or by the 

private sector, of $110 million. The only 

burden associated with this rule is the 

information collection burden 

associated with collecting and posting 

nurse staffing data. This final rule will 

have no consequential effect on the 

governments mentioned or on the 

private sector. 

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 

any costs on State or local governments, 

the requirements of Executive Order 

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 

homes, Nutrition, Reporting and 

recordkeeping requirements, Safety. 

■ For the reasons set forth in the 

preamble, the Centers for Medicare & 

Medicaid Services amends 42 CFR part 

483 as follows: 

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 483.30 is amended by 

adding paragraph (e) to read as follows: 

§ 483.30 Nursing services. 

* * * * * 

(e) Nurse staffing information—(1) 

Data requirements. The facility must 

post the following information on a 

daily basis: 

(i) Facility name. 

(ii) The current date. 

(iii) The total number and the actual 

hours worked by the following 

categories of licensed and unlicensed 

nursing staff directly responsible for 

resident care per shift: 

(A) Registered nurses. 

(B) Licensed practical nurses or 

licensed vocational nurses (as defined 

under State law). 

(C) Certified nurse aides. 

(iv) Resident census. 

(2) Posting requirements. (i) The 

facility must post the nurse staffing data 

specified in paragraph (e)(1) of this 

section on a daily basis at the beginning 

of each shift. 

(ii) Data must be posted as follows: 

(A) Clear and readable format. 

(B) In a prominent place readily 

accessible to residents and visitors. 

(3) Public access to posted nurse 

staffing data. The facility must, upon 

oral or written request, make nurse 

staffing data available to the public for 

review at a cost not to exceed the 

community standard. 

(4) Facility data retention 

requirements. The facility must 

maintain the posted daily nurse staffing 

data for a minimum of 18 months, or as 

required by State law, whichever is 

greater. 

(Catalog of Federal Domestic Assistance 

Program No. 93.773, Medicare—Hospital 

Insurance) 

Dated: April 21, 2005. 

Mark B. McClellan, 

Administrator, Centers for Medicare & 

Medicaid Services. 

Approved: June 16, 2005. 

Michael O. Leavitt, 

Secretary. 

[FR Doc. 05–21278 Filed 10–27–05; 8:45 am] 

BILLING CODE 4120–01–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Parts 600 and 622 

[Docket No. 050729208–5267–02; I.D. 

060805B] 

RIN 0648–AP51 

Fisheries of the Caribbean, Gulf of 

Mexico, and South Atlantic; 

Comprehensive Amendment to the 

Fishery Management Plans of the U.S. 

Caribbean 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: NMFS issues this final rule to 

implement a comprehensive 

amendment prepared by the Caribbean 

Fishery Management Council (Council) 

to amend its Reef Fish, Spiny Lobster, 

Queen Conch, and Coral Fishery 

Management Plans (FMPs). The 

comprehensive amendment is designed 

to ensure the FMPs are fully compliant 

with the provisions of the MagnusonStevens Fishery Conservation and 

Management Act (Magnuson-Stevens 

Act). This final rule redefines the 

fishery management units for the FMPs; 

establishes seasonal closures; imposes 

gear restrictions and requirements;