Date: April 24, 2020Attorney: Mohamed H. Nabulsi

April 24, 2020
By Mohamed H. Nabulsi

Ordinarily, pursuant to N.J.A.C. 8:43A-24.7, ambulatory care facilities (“ACFs”) that provide outpatient renal dialysis services are required to have at least one registered nurse (“RN”) on duty for the first nine patients receiving dialysis services on the premises, and an additional RN on duty for each additional nine patients, or any portion thereof. In addition, facilities must have at least one RN, LPN, or trained patient care technician on duty for every three patients receiving dialysis services.

Because, however, the COVID-19 public health emergency has caused ACFs to suffer significant staffing shortages that have inhibited their ability to maintain the staff-to-patient ratios normally required, the Department of Health (“DOH”) has issued a waiver/modification of N.J.A.C. 8:43A-24.7 that would allow ACFs to comply with the less stringent staffing rules established by the Centers for Medicare and Medicaid Services’ (“CMS”) rules for dialysis staffing, which are codified at 42 C.F.R. 494.180(b). The waiver is effective April 17, 2020.

To take advantage of the DOH’s waiver, the ACFs must “develop and adhere to a staffing plan” that is consistent with the CMS rule. ACFs must provide a written report to the DOH detailing the extent to which the ACF implemented the terms of this waiver by indicating the new staffing plan and any adverse outcomes attributable to the new staffing plan.

Under the CMS rule, an outpatient dialysis provider need only meet the following requirements:

1. Only one RN, who is responsible for the nursing care provided, must be present in the ACF at all times that in-center dialysis patients are being treated;

2. Instead of the strict ratios normally required, as described above, ACFs now need only ensure that there is “an adequate number of qualified personnel” present so that the patient/staff ratio “is appropriate to the level of dialysis care given and meets the needs of patients.”

    – This rule change, in essence, grants the ACF broad subjective discretion to determine the “adequate number” of qualified personnel that need to be present.

3. The ACF must ensure that an RN, social worker, and dietician must be “available to meet patient clinical needs.”

ACFs may implement the terms of this waiver as necessary until the conclusion of the Public Health Emergency declared by the Governor. Upon the conclusion of the emergency, ACFs that have implemented the terms of the waiver will have 45 days within which to resume operations in accordance with the staffing requirements set forth in N.J.A.C. 8:43A-24.7.