Arkansas Administrative Code
Agency 016 - DEPARTMENT OF HUMAN SERVICES
Division 25 - Division of Provider Services and Quality Assurance
Rule 016.25.21-002 - Direct Care Staffing Requirements update pursuant to ACT 715 of 2021

a. "Average direct care hours per resident day" means the total number of hours of direct care services provided by direct care staff in a month, divided by the number of calendar days in that month, and the facility's average daily resident census for that month.

b. "Certified nursing facility" means a nursing facility licensed by the Department of Human Services that is certified to participate in the federal Medicare program as a skilled nursing facility, or in the Arkansas Medicaid Program as a nursing facility, or both.

c. "Direct care services" means nursing and nursing-related services; clinical, diagnostic, therapeutic, and rehabilitative services; physical, occupational, respiratory, and speech therapy services; delegated physician tasks; behavioral health services; care management, care coordination, and care transition activities; medication administration; assistance with activities of daily living; assessment, evaluation, planning, and implementation of care plans; coordination and consultation with residents' physicians and other healthcare providers; and other services and supports provided for nursing facility residents in response to individual resident needs. However, the meaning of "direct care services" does not include food preparation, laundry, housekeeping, or other maintenance of a nursing facility's physical environment.

d. "Direct care staff" means a person who provides any direct care services to a nursing facility resident through interpersonal contact with residents or resident care management, including without limitation a licensed nurse; nurse aide; medication assistant; physician; physician assistant; licensed physical or occupational therapist or licensed therapy assistant; registered respiratory therapist; licensed speech-language pathologist; infection preventionist; and other healthcare professionals licensed or certified in the state of Arkansas.

e. "Division" means the Division of Provider Services and Quality Assurance.

f. "Federal direct care data system" means the national online data reporting system operated by the Centers for Medicare and Medicaid Services and used by nursing facilities participating in the federal Medicare program, or the Arkansas Medicaid Program, or both to electronically report detailed and standardized direct care and other staffing information.

g. "Licensed nurse" means any registered nurse, licensed practical nurse, advanced practice registered nurse, or registered nurse practitioner licensed in the state of Arkansas.

h. "Medicare and Medicaid requirements of participation" means the federal requirements established by the Centers for Medicare and Medicaid Services under 42 U.S.C. 1320a-7j, 42 U.S.C. 1395i-3, and 42 U.S.C. 1396r, that a licensed nursing facility is required to follow to be certified as compliant with and participate in the federal Medicare program as a skilled nursing facility, or the Medicaid program as a nursing facility, or both, as existing on January 1, 2021.

i. "Medication assistant" means a medication assistive person who is qualified and certified under Arkansas Code § 17-87-701 et. seq. Alternatively referred to as medication assistant-certified in rules of the Arkansas Board of Nursing.

j. "Private pay-only nursing facility" means a licensed nursing facility that is not certified to participate in the federal Medicare program as a skilled nursing facility or in the Arkansas Medicaid Program as a nursing facility.

k. "Universal worker" means a certified nurse aide (CNA) who is designated by a skilled nursing facility as a universal worker and who performs both CNA direct care service duties and non-direct care tasks such as food service, laundry, and housekeeping, and other non-direct care services to meet the needs of residents.

l. "Variance" means granting an alternate requirement or modifying a requirement in place of a requirement established in rule.

m. "Waiver" means the grant of an exemption from a requirement established in rule.

a. As a condition of licensure by the department, a nursing facility, except a private pay-only nursing facility, shall be certified to participate in the federal Medicare program as a skilled nursing facility, or in the Arkansas Medicaid program as a nursing facility, or in both.

b. As a condition of licensure by the department, a private pay-only nursing facility shall (1) comply with all state requirements applicable to a private pay-only nursing facility, including rules promulgated by the department, and (2) cooperate with department audits, inspections, and document requests.

a. Under 42 U.S.C. 1395i-3 and 42 U.S.C. 1396r, a certified nursing facility (1) is subject to federal requirements of participation and (2) must demonstrate substantial compliance with applicable federal requirements to receive and maintain certification necessary to participate in Medicaid, Medicare, or both.

b. As required under Arkansas Code § 20-10-1402(d)(2), department rules applicable to certified nursing facilities (1) apply to conditions and processes of state licensure and (2) may not exceed or duplicate federal requirements of participation, including staffing and data reporting requirements, except average direct care hours per resident day requirements under Arkansas Code § 20-10-1402(a)(2) and (b).

a. Each certified nursing facility shall:

b. Hours used in determining actual average direct care hours per resident day for each month shall be:

c. If necessary to correct one (1) or more of the three (3) monthly reports following data validation and based on the final staffing data reported to the federal direct care data system for the applicable quarter, the facility shall promptly file an amended monthly report(s) with the department within fifteen (15) days of the federal direct care data system reporting deadline for the quarter.

d. The monthly reports shall show the following information:

e. The monthly reporting under this section is not intended to duplicate or exceed the comprehensive federal direct care data system, require reporting at the level of detail required by the federal direct care data system, or require reporting not otherwise necessary to meet Arkansas Code § 20-10-1402(b).

f. Consistent with Arkansas Code § 20-10-1402(e), this section does not require or advise any specific or minimum number of nursing staff hours, direct care staff hours, or hours of other services for any nursing facility resident. The services an individual resident receives is based on baseline and comprehensive, person-centered care plans required under 42 CFR § 483.21 and are governed by the services and staffing-related requirements in 42 CFR Part 483 Subpart B.

g. To ensure compliance with the requirements of this subsection, the department may:

a. Each private pay-only nursing facility shall:

b. In determining and reporting direct care hours as required:

c. The department may audit these monthly reports and request documentation from the private pay-only facility to ensure compliance with the requirements of this subsection.

a. Any licensed nursing facility may elect to use certified medication assistants (medication assistants-certified) to perform the delegated nursing function of medication administration and related tasks under the supervision of a licensed nurse on the premises and consistent with the medication assistant rules of the Arkansas Board of Nursing.

b. A person who is both a certified medication assistant and certified nurse aide may perform both functions in a nursing facility.

a. A licensed nursing facility may:

b. Without limitation under department rules or need of a waiver or permission from the department, a licensed nursing facility may engage in any staffing-related practice permitted under federal requirements of participation.

a. In the event of a public health emergency, natural disaster, other major emergency, or severe labor shortage, the department may temporarily waive the average direct care hours per resident day standard in subsections 520.4 and 520.5 for any certified facility in a county or the state.

b. In the event of a public health emergency, a natural disaster, or other emergency declared by the Governor or the U.S. Secretary of Health and Human Services, the department may issue a temporary waiver or variance of any rule (including any staffing-related rule) that it determines reasonable and necessary under one (1) or more of the following circumstances:

c. A request for a waiver or variance must be made in writing by a licensed nursing facility to the division director. The request must contain details of the reason for the waiver or variance and the potential impact to the facility if said waiver or variance is not granted.

d. The department may approve or deny a waiver or variance request at its discretion. Approvals and denials must be made in writing.

e. The department may extend or renew an approved waiver or variance and may impose such conditions it deems necessary to (1) protect the health and safety of facility residents and staff, (2) meet federal requirements or guidance, or (3) best meet the intended purpose of the waiver or variance.