2024 -- H 7520

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LC004744

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2024

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A N   A C T

RELATING TO HEALTH AND SAFETY -- RIGHTS OF NURSING HOME PATIENTS

     Introduced By: Representatives Quattrocchi, Nardone, Rea, Roberts, Place, and
Chippendale

     Date Introduced: February 07, 2024

     Referred To: House Health & Human Services

     It is enacted by the General Assembly as follows:

     SECTION 1. Sections 23-17.5-32, 23-17.5-33, 23-17.5-34, 23-17.5-35 and 23-17.5-36 of

the General Laws in Chapter 23-17.5 entitled "Rights of Nursing Home Patients" are hereby

repealed.

     23-17.5-32. Minimum staffing levels.

     (a) Each facility shall have the necessary nursing service personnel (licensed and non-

licensed) in sufficient numbers on a twenty-four (24) hour basis, to assess the needs of residents,

to develop and implement resident care plans, to provide direct resident care services, and to

perform other related activities to maintain the health, safety, and welfare of residents. The facility

shall have a registered nurse on the premises twenty-four (24) hours a day.

     (b) For purposes of this section, the following definitions shall apply:

     (1) “Direct caregiver” means a person who receives monetary compensation as an

employee of the nursing facility or a subcontractor as a registered nurse, a licensed practical nurse,

a medication technician, a certified nurse assistant, a licensed physical therapist, a licensed

occupational therapist, a licensed speech-language pathologist, a mental health worker who is also

a certified nurse assistant, or a physical therapist assistant.

     (2) “Hours of direct nursing care” means the actual hours of work performed per patient

day by a direct caregiver.

     (c)(i) Commencing on January 1, 2022, nursing facilities shall provide a quarterly

minimum average of three and fifty-eight hundredths (3.58) hours of direct nursing care per

resident, per day, of which at least two and forty-four hundredths (2.44) hours shall be provided by

certified nurse assistants.

     (ii) Commencing on January 1, 2023, nursing facilities shall provide a quarterly minimum

of three and eighty-one hundredths (3.81) hours of direct nursing care per resident, per day, of

which at least two and six-tenths (2.6) hours shall be provided by certified nurse assistants.

     (d) Director of nursing hours and nursing staff hours spent on administrative duties or non-

direct caregiving tasks are excluded and may not be counted toward compliance with the minimum

staffing hours requirement in this section.

     (e) The minimum hours of direct nursing care requirements shall be minimum standards

only. Nursing facilities shall employ and schedule additional staff as needed to ensure quality

resident care based on the needs of individual residents and to ensure compliance with all relevant

state and federal staffing requirements.

     (f) The department shall promulgate rules and regulations to amend the Rhode Island code

of regulations in consultation with stakeholders to implement these minimum staffing requirements

on or before October 15, 2021.

     (g) On or before January 1, 2024, and every five (5) years thereafter, the department shall

consult with consumers, consumer advocates, recognized collective bargaining agents, and

providers to determine the sufficiency of the staffing standards provided in this section and may

promulgate rules and regulations to increase the minimum staffing ratios to adequate levels.

     23-17.5-33. Minimum staffing level compliance and enforcement program.

     (a) Compliance determination.

     (1) The department shall submit proposed rules and regulations for adoption by October

15, 2021, establishing a system for determining compliance with minimum staffing requirements

set forth in § 23-17.5-32.

     (2) Compliance shall be determined quarterly by comparing the number of hours provided

per resident, per day using the Centers for Medicare and Medicaid Services’ payroll-based journal

and the facility’s daily census, as self-reported by the facility to the department on a quarterly basis.

     (3) The department shall use the quarterly payroll-based journal and the self-reported

census to calculate the number of hours provided per resident, per day and compare this ratio to the

minimum staffing standards required under § 23-17.5-32. Discrepancies between job titles

contained in § 23-17.5-32 and the payroll-based journal shall be addressed by rules and regulations.

     (b) Monetary penalties.

     (1) The department shall submit proposed rules and regulations for adoption on or before

October 15, 2021, implementing monetary penalty provisions for facilities not in compliance with

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minimum staffing requirements set forth in § 23-17.5-32.

     (2) Monetary penalties shall be imposed quarterly and shall be based on the latest quarter

for which the department has data.

     (3) No monetary penalty may be issued for noncompliance with the increase in the standard

set forth in § 23-17.5-32(c)(ii) from January 1, 2023, to March 31, 2023. If a facility is found to be

noncompliant with the increase in the standard during the period that extends from January 1, 2023,

to March 31, 2023, the department shall provide a written notice identifying the staffing

deficiencies and require the facility to provide a sufficiently detailed correction plan to meet the

statutory minimum staffing levels.

     (4) Monetary penalties shall be established based on a formula that calculates on a daily

basis the cost of wages and benefits for the missing staffing hours.

     (5) All notices of noncompliance shall include the computations used to determine

noncompliance and establishing the variance between minimum staffing ratios and the

department’s computations.

     (6) The penalty for the first offense shall be two hundred percent (200%) of the cost of

wages and benefits for the missing staffing hours. The penalty shall increase to two hundred fifty

percent (250%) of the cost of wages and benefits for the missing staffing hours for the second

offense and three hundred percent (300%) of the cost of wages and benefits for the missing staffing

hours for the third and all subsequent offenses.

     (7) For facilities that have an offense in three (3) consecutive quarters, EOHHS shall deny

any further Medicaid Assistance payments with respect to all individuals entitled to benefits who

are admitted to the facility on or after January 1, 2022, or shall freeze admissions of new residents.

     (c)(1) The penalty shall be imposed regardless of whether the facility has committed other

violations of this chapter during the same period that the staffing offense occurred.

     (2) The penalty may not be waived except as provided in subsection (c)(3) of this section,

but the department shall have the discretion to determine the gravity of the violation in situations

where there is no more than a ten percent (10%) deviation from the staffing requirements and make

appropriate adjustments to the penalty.

     (3) The department is granted discretion to waive the penalty when unforeseen

circumstances have occurred that resulted in call-offs of scheduled staff. This provision shall be

applied no more than two (2) times per calendar year.

     (4) Nothing in this section diminishes a facility’s right to appeal pursuant to the provisions

of chapter 35 of title 42 (“administrative procedures”).

     (d)(1) Pursuant to rules and regulations established by the department, funds that are

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received from financial penalties shall be used for technical assistance or specialized direct care

staff training.

     (2) The assessment of a penalty does not supplant the state’s investigation process or

issuance of deficiencies or citations under this title.

     (3) A notice of noncompliance, whether or not the penalty is waived, and the penalty

assessment shall be prominently posted in the nursing facility and included on the department’s

website.

     23-17.5-34. Nursing staff posting requirements.

     (a) Each nursing facility shall post its daily direct care nurse staff levels by shift in a public

place within the nursing facility that is readily accessible to and visible by residents, employees,

and visitors. The posting shall be accurate to the actual number of direct care nursing staff on duty

for each shift per day. The posting shall be in a format prescribed by the director, to include:

     (1) The number of registered nurses, licensed practical nurses, certified nursing assistants,

medication technicians, licensed physical therapists, licensed occupational therapists, licensed

speech-language pathologists, mental health workers who are also certified nurse assistants, and

physical therapist assistants;

     (2) The number of temporary, outside agency nursing staff;

     (3) The resident census as of twelve o’clock (12:00) a.m.; and

     (4) Documentation of the use of unpaid eating assistants (if utilized by the nursing facility

on that date).

     (b) The posting information shall be maintained on file by the nursing facility for no less

than three (3) years and shall be made available to the public upon request.

     (c) Each nursing facility shall report the information compiled pursuant to section (a) of

this section and in accordance with department of health regulations to the department of health on

a quarterly basis in an electronic format prescribed by the director. The director shall make this

information available to the public on a quarterly basis on the department of health website,

accompanied by a written explanation to assist members of the public in interpreting the

information reported pursuant to this section.

     (d) In addition to the daily direct nurse staffing level reports, each nursing facility shall

post the following information in a legible format and in a conspicuous place readily accessible to

and visible by residents, employees, and visitors of the nursing facility:

     (1) The minimum number of nursing facility direct care staff per shift that is required to

comply with the minimum staffing level requirements in § 23-17.5-32; and

     (2) The telephone number or internet website that a resident, employee, or visitor of the

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nursing facility may use to report a suspected violation by the nursing facility of a regulatory

requirement concerning staffing levels and direct patient care.

     (e) No nursing facility shall discharge or in any manner discriminate or retaliate against

any resident of any nursing facility, or any relative, guardian, conservator, or sponsoring agency

thereof or against any employee of any nursing facility or against any other person because the

resident, relative, guardian, conservator, sponsoring agency, employee, or other person has filed

any complaint or instituted or caused to be instituted any proceeding under this chapter, or has

testified or is about to testify in any such proceeding or because of the exercise by the resident,

relative, guardian, conservator, sponsoring agency, employee, or other person on behalf of himself,

herself, or others of any right afforded by §§ 23-17.5-32, 23-17.5-33, and 23-17.5-34.

Notwithstanding any other provision of law to the contrary, any nursing facility that violates any

provision of this section shall:

     (1) Be liable to the injured party for treble damages; and

     (2)(i) Reinstate the employee, if the employee was terminated from employment in

violation of any provision of this section; or

     (ii) Restore the resident to the resident’s living situation prior to such discrimination or

retaliation, including the resident’s housing arrangement or other living conditions within the

nursing facility, as appropriate, if the resident’s living situation was changed in violation of any

provision of this section. For purposes of this section, “discriminate or retaliate” includes, but is

not limited to, the discharge, demotion, suspension, or any other detrimental change in terms or

conditions of employment or residency, or the threat of any such action.

     (f)(1) The nursing facility shall prepare an annual report showing the average daily direct

care nurse staffing level for the nursing facility by shift and by category of nurse to include:

     (i) Registered nurses;

     (ii) Licensed practical nurses;

     (iii) Certified nursing assistants;

     (iv) Medication technicians;

     (v) Licensed physical therapists;

     (vi) Licensed occupational therapists;

     (vii) Licensed speech-language pathologists;

     (viii) Mental health workers who are also certified nurse assistants;

     (ix) Physical therapist assistants;

     (x) The use of registered and licensed practical nurses and certified nursing assistant staff

from temporary placement agencies; and

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     (xi) The nurse and certified nurse assistant turnover rates.

     (2) The annual report shall be submitted with the nursing facility’s renewal application and

provide data for the previous twelve (12) months and ending on or after September 30, for the year

preceding the license renewal year. Annual reports shall be submitted in a format prescribed by the

director.

     (g) The information on nurse staffing shall be reviewed as part of the nursing facility’s

annual licensing survey and shall be available to the public, both in printed form and on the

department’s website, by nursing facility.

     (h) The director of nurses may act as a charge nurse only when the nursing facility is

licensed for thirty (30) beds or less.

     (i) Whenever the licensing agency determines, in the course of inspecting a nursing facility,

that additional staffing is necessary on any residential area to provide adequate nursing care and

treatment or to ensure the safety of residents, the licensing agency may require the nursing facility

to provide such additional staffing and any or all of the following actions shall be taken to enforce

compliance with the determination of the licensing agency:

     (1) The nursing facility shall be cited for a deficiency and shall be required to augment its

staff within ten (10) days in accordance with the determination of the licensing agency;

     (2) If failure to augment staffing is cited, the nursing facility shall be required to curtail

admission to the nursing facility;

     (3) If a continued failure to augment staffing is cited, the nursing facility shall be subjected

to an immediate compliance order to increase the staffing, in accordance with § 23-1-21; or

     (4) The sequence and inclusion or non-inclusion of the specific sanctions may be modified

in accordance with the severity of the deficiency in terms of its impact on the quality of resident

care.

     (j) No nursing staff of any nursing facility shall be regularly scheduled for double shifts.

     (k) A nursing facility that fails to comply with the provisions of this chapter, or any rules

or regulations adopted pursuant thereto, shall be subject to a penalty as determined by the

department.

     23-17.5-35. Staffing plan.

     (a) There shall be a master plan of the staffing pattern for providing twenty-four-hour (24)

direct care nursing service; for the distribution of direct care nursing personnel for each floor and/or

residential area; for the replacement of direct care nursing personnel; and for forecasting future

needs.

     (b)(1) The staffing pattern shall include provisions for registered nurses, licensed practical

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nurses, certified nursing assistants, medication technicians, licensed physical therapists, licensed

occupational therapists, licensed speech-language pathologists, mental health workers who are also

certified nurse assistants, physical therapist assistants, and other personnel as required.

     (2) The number and type of nursing personnel shall be based on resident care needs and

classifications as determined for each residential area. Each nursing facility shall be responsible to

have sufficient qualified staff to meet the needs of the residents.

     (3) At least one individual who is certified in basic life support must be available twenty-

four (24) hours a day within the nursing facility.

     (4) Each nursing facility shall include direct caregivers, including at least one certified

nursing assistant, in the process to create the master plan of the staffing pattern and the federally

mandated facility assessment. If the certified nursing assistants in the nursing facility are

represented under a collective bargaining agreement, the bargaining unit shall coordinate voting to

allow the certified nursing assistants to select their representative.

     23-17.5-36. Enhanced training.

     The department of labor and training shall provide grants from its workforce development

resources to eligible nursing facilities for enhanced training for direct care and support services

staff to improve resident quality of care and address the changing healthcare needs of nursing

facility residents due to higher acuity and increased cognitive impairments. The department will

work with stakeholders, including labor representatives, to create the eligibility criteria for the

grants. In order for facilities to be eligible they must pay their employees at least fifteen dollars

($15.00) per hour, have staff retention above the statewide median, and comply with the minimum

staffing requirements.

     SECTION 2. This act shall take effect upon passage.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO HEALTH AND SAFETY -- RIGHTS OF NURSING HOME PATIENTS

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     This act would repeal a 2021 law that mandated minimum staffing levels and standards for

quality care for nursing homes and their residents with violations subject to monetary penalties.

     This act would take effect upon passage.

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LC004744

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