Summary

The Pennsylvania Department of Health recently published the second of an expected five sets of proposed changes to the Commonwealth’s long-term care nursing facility regulations. The regulatory overhaul began over the summer with the publication of the first set of proposed revisions.

The Upshot

• Pennsylvania this month proposed the second of an expected five sets of changes to the Commonwealth’s nursing home regulations.
• The second set includes proposed changes to regulations governing facility closure, applicability of the Life Safety Code, and standards for physical environment and equipment.
• Additionally, the Pennsylvania Department of Health tentatively outlines the scope of the regulatory changes to be set forth in each of the remaining sets. Future sets likely will relate to facility licensure, disaster preparedness, the multitude of services offered in regulated facilities, and residents’ rights.

The Bottom Line

The second set of proposed regulations aims to revise or delete duplicative or conflicting requirements between state and federal standards applicable to long-term care nursing facilities. The proposed regulations would amend standards relating to the closure of a long-term care facility, delete certain physical storage standards and Life Safety Code standards as duplicative of federal requirements, and clarify certain requirements for renovation or construction of new, versus existing, facilities.

Governor Wolf’s administration continued its release of regulations in furtherance of the Commonwealth’s first overhaul to long-term care nursing facility regulations since 1999. On October 9, 2021, the Pennsylvania Department of Health (the Department) published the second set (of an expected five sets) of proposed regulations in the Pennsylvania Bulletin. The Department is still finalizing three additional sets, but has released tentative proposals for the contents of each. Future revisions are expected to include proposed revisions to regulations related to facility licensure, disaster preparedness, residents’ rights, and the range of professional services offered at regulated facilities.

The second set of proposed regulatory revisions focuses on standards related to facility construction, alterations, or closure. Primarily, the Department aims to eliminate provisions of relevant Pennsylvania law that conflict with, or are duplicative of, federal standards.

Specifically, the Department proposes:

• Reducing or eliminating state requirements (to the extent that they conflict with federal law) for notifying the Department or residents of impending facility closure;
• Deleting a requirement for licensed facilities to file proof of financial responsibility with the Department (as federal law already requires certain plans for continuing payment of salaries and other expenses throughout a facility closure process);
• Deleting regulations related to application of the Life Safety Code (as the same is incorporated by reference in federal requirements that the Commonwealth intends to adopt for all long-term care nursing facilities); and
• Separating regulations pertaining to alterations, renovations, and construction in order to clarify which standards apply to new versus existing alterations, renovations, or construction.

The Department proposes a number of changes within this final category. These proposed changes relate to regulations governing building plans, resident rooms, locks, laundry, utility rooms, bathrooms and bathing facilities, linen, supplies, windows, dining, lounges, plumbing, and other aspects of buildings and grounds.

Additionally, the Department will retain current restrictions on requiring residents to leave within 30 days after receiving applicable notice. Finally, the Department proposes to amend housekeeping and maintenance standards by deleting certain requirements for ice containers and storage.

The Department does not expect the second set of proposed amendments to increase costs to various stakeholders. For the Department, consistency between state and federal law is expected to streamline Department survey processes and provide clarity related to the applicability of standards to new alterations or construction versus those applicable to existing facilities. The Department expects little or no financial impact on the 689 licensed long-term care nursing facilities in the Commonwealth. Only three such facilities do not participate in Medicare or Medicaid and all others already must comply with federal regulations. For the Commonwealth specifically, the Department does not expect the proposed regulations to increase costs for any county-owned facilities in Pennsylvania (of which there are 20, accounting for approximately 8% of total beds). The Department does not expect any increased cost to the general public.

Comments on the proposed regulations may be submitted within 30 days of publication. The Department prefers to receive comments by electronic mail to RA-DHLTCRegs@pa.gov. Ballard Spahr’s Pennsylvania health care attorneys will continue to provide updates on the rollout of these sets of proposed rules as they become available.