[Federal Register Volume 70, Number 208 (Friday, October 28, 2005)]
[Rules and Regulations]
[Pages 62065-62073]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-21278]



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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.

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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:
    <bullet> An October 10, 2002 letter to State Agency Directors, 
which can be found at http://www.cms.hhs.gov/medicaid/survey-cert/SC0303.pdf.
    <bullet> Presentation of information at a national nursing home 
conference.
    <bullet> Publication of a notice on an electronic bulletin board 
used by nursing homes.
    <bullet> 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 Medicaid-certified 
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 
Medicare- and Medicaid-certified nursing home in the country. Nursing 
Home Compare contains the following sections of detailed information:
    <bullet> About the Nursing Home: including the number of beds and 
type of ownership.
    <bullet> Quality Measures: including the percentage of residents 
with pressure (bed) sores, percentage of residents with physical 
restraints, and more.
    <bullet> Inspection Result Information: including health and safety 
deficiencies found during the most recent State nursing home survey and 
from recent complaint investigations.
    <bullet> 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

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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 Sec.  483.30(c) or Sec.  
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 Medicare- and 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 Sec.  483.30, 
Nursing services.
    We proposed to revise Sec.  483.30 by adding a new paragraph (e) 
that would require nursing homes to post nurse-staffing 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 Sec.  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 Sec.  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 Sec.  483.30(e)(1) through 
Sec.  483.30(e)(3) would require that the nurse staffing and census 
information:
    <bullet> Include current nurse staffing numbers calculated as full 
time equivalents (FTEs) for each shift;
    <bullet> Include the daily resident census;
    <bullet> Be posted on the CMS Daily Nurse Staffing Form; and
    <bullet> 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 Sec.  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 Sec.  483.30(e)(2), that is, the proposed

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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 Sec.  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 Sec.  483.30(e)(1)

    In Sec.  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.

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    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 Sec.  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 nurse-staffing 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.

[[Page 62069]]

B. Form Use and Posting Requirements, Proposed Sec.  483.30(e)(2)

    We proposed at Sec.  483.30(e)(2)(i) to require SNFs and NFs to use 
a CMS-specified form (Daily Nurse Staffing Form) to enter the 
information specified in paragraph (e)(1) of this section, and we 
proposed at Sec.  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 CMS-specified 
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 CMS-specified form. Some commenters 
also stated that requiring the use of a CMS-specified 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 Sec.  
483.30(e)(3)(i) of the proposed rule and Sec.  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       Staffing total
                                                                                 worked
---------------------------------
7 a.m.-3 p.m....................  Licensed..........  RN................  1 RN 7 a.m.-3 p.m.  2.5 RNs.
                                                                          2 RN 7 a.m.-11
                                                                           a.m..
                                                                          1 RN 11 a.m.-3
                                                                           p.m..
                                                      LPN/LVN...........  2 LPN 7 a.m.-3      2 LPNs.
                                                                           p.m..
                                  Non-Licensed......  CNA...............  5 CNA 7 a.m.-3      5 CNAs.
                                                                           p.m..
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 nurse-staffing 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

[[Page 62070]]

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 Sec.  
483.30(e)(3)

    We proposed public access and data retention requirements at Sec.  
483.30(e)(3). Forty percent of the commenters had a comment about the 
proposed access requirements at Sec.  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

[[Page 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.

[[Page 62072]]

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:
    <bullet> The need for the information collection and its usefulness 
in carrying out the proper functions of our agency.
    <bullet> The accuracy of our estimate of the information collection 
burden.
    <bullet> The quality, utility, and clarity of the information to be 
collected.
    <bullet> 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 Sec.  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

[[Page 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.

0
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

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

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

0
2. Section 483.30 is amended by adding paragraph (e) to read as 
follows:


Sec.  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