[Billing Code: 4120-01-P]

DEPARTMENT OF HEALTH AND HUMAN SERVICES
Centers for Medicare & Medicaid Services
42 CFR Parts 438, 442, and 483
[CMS–3442–F; CMS-3442-CN]
RIN 0938-AV25
Medicare and Medicaid Programs; Minimum Staffing Standards for Long-Term Care
Facilities and Medicaid Institutional Payment Transparency Reporting; Correction
AGENCY: Centers for Medicare & Medicaid Services (CMS), Department of Health and
Human Services (HHS).
ACTION: Final rule; correction.
SUMMARY: This document corrects typographical and technical errors in the final rule that
appeared in the May 10, 2024 Federal Register, entitled “Medicare and Medicaid Programs;
Minimum Staffing Standards for Long-Term Care Facilities and Medicaid Institutional Payment
Transparency Reporting (referred to hereafter as the “Minimum Staffing final rule”). The
effective date of the Minimum Staffing final rule is June 21, 2024.
DATES: This document is effective June 21, 2024.
FOR FURTHER INFORMATION CONTACT: The Clinical Standard Group’s Long Term
Care Team at HealthandSafetyInquiries@cms.hhs.gov for information related to the minimum
staffing standards. Anne Blackfield, (410) 786-8518, for information related to Medicaid
institutional payment transparency reporting.
SUPPLEMENTARY INFORMATION:
I. Background
In FR Doc. 2024-08273 of May 10, 2024 (89 FR 40876), there were typographical and
technical errors that are identified and corrected in this correcting document. These corrections
are effective as if they had been included in the Minimum Staffing final rule. Accordingly, the

corrections are effective June 21, 2024.
II. Summary of Errors
A. Summary of Errors in the Preamble
On page 40876, we made a typographical error in the implementation date for
§§ 438.72(a) and 442.43 that must be implemented by all States and territories with Medicaidcertified nursing facilities and intermediate care facilities for individuals with intellectual
disabilities.
On page 40895, we included an incorrect citation at footnote number 62.
On page 40898, Table 2: Requirements for the LTC Staffing Statutory Waivers by
Facility Type, portions of the table content were omitted.
On page 40901, we included incorrect links for the Bureau of Labor Statistic’s
Occupational Employment and Wage Statistics Query System and the data source used to
calculate the population for each MSA or non-MSA using population estimates from the United
States Census Bureau.
On page 40909 we included an incorrect citation at footnote number 67.
On page 40911, we made an error in describing the Census Bureau definition of “urban”
as one that used “counties” for the unit of measure.
On pages 40919, 40920, 40923, and 40929, we made typographical errors in regulatory
citations.
On page 40930, we made a typographical error in a reference to page numbers in the
Federal Register.
On pages 40931 and 40932, we made typographical errors in regulatory citations.
On page 40934, we made typographical errors in the summary of regulatory language
changes.
On page 40935, we included an incorrect link for the May 2022 National Occupational
Employment and Wage Statistics.

On page 40948, we included an incorrect citation at footnote number 96.
On page 40949, we included an incorrect table number reference.
On page 40992, we included incorrect links for the May 2022 National Occupational
Employment and Wage Statistics.
B. Summary of Errors in the Regulation Text
On page 40995, in the regulation text for § 442.43(b), we made a reference to “State
directed payments as defined in § 438.6(c) of this chapter”. However, this definition of State
directed payments was moved to § 438.2 in the Managed Care Access, Finance, and Quality final
rule (89 FR 41002). We are correcting this error.
On page 40998, in the regulation text for § 483.35(h)(2)(iv), we made an incorrect crossreference to § 483.71(b)(4), which does not exist.
III. Waiver of Proposed Rulemaking
Under 5 U.S.C. 553(b) of the Administrative Procedure Act (the APA), the agency is
required to publish a notice of the proposed rule in the Federal Register before the provisions of
a rule take effect. In addition, section 553(d) of the APA mandates a 30-day delay in effective
date after issuance or publication of a substantive rule. Sections 553(b)(B) and 553(d)(3) of the
APA provide for exceptions from the APA notice and comment, and delay in effective date
requirements. Section 553(b)(B) of the APA authorizes an agency to dispense with normal
notice and comment rulemaking procedures for good cause if the agency makes a finding that the
notice and comment process is impracticable, unnecessary, or contrary to the public interest, and
includes a statement of the finding and the reasons for it in the rule. Similarly, section 553(d)(3)
of the APA allows the agency to avoid the 30-day delay in effective date where good cause is
found and the agency includes in the rule a statement of the finding and the reasons for it. In our
view, this correcting document does not constitute a rulemaking that would be subject to these
requirements.
This document merely corrects technical errors in the Minimum Staffing final rule. The

corrections contained in this document are consistent with, and do not make substantive changes
to, the policies that were proposed, subject to notice and comment procedures, and adopted in the
Minimum Staffing final rule. As a result, the corrections made through this correcting document
are intended to resolve inadvertent errors so that the rule accurately reflects the policies adopted
in the final rule. Even if this were a rulemaking to which the notice and comment and delayed
effective date requirements applied, we find that there is good cause to waive such requirements.
Undertaking further notice and comment procedures to incorporate the corrections in this
document into the Minimum Staffing final rule or delaying the effective date of the corrections
would be contrary to the public interest because it is in the public interest to ensure that the rule
accurately reflects our policies as of the date they take effect. Further, such procedures would be
unnecessary because we are not making any substantive revisions to the final rule, but rather, we
are simply correcting the Federal Register document to reflect the policies that we previously
proposed, received public comment on, and subsequently finalized in the final rule. For these
reasons, we believe there is good cause to waive the requirements for notice and comment and
delay in effective date.
IV. Correction of Errors in the Preamble
In FR Doc. 2024-08273 of May 10, 2024 (89 FR 40876), make the following corrections:
A. Correction of Errors in the Preamble
1. On page 40876, first column, sixth paragraph under the heading “DATES”, lines 1
through 7, the sentence that reads “The regulations at §§ 438.72(a) and 442.43 must be
implemented by all States and territories with Medicaid-certified nursing facilities and
intermediate care facilities for individuals with intellectual disabilities beginning May 10, 2028.”
is corrected to read “The regulations at §§ 438.72(a) and 442.43 must be implemented by all
States and territories with Medicaid-certified nursing facilities and intermediate care facilities for
individuals with intellectual disabilities beginning June 21, 2028.”.
2. On page 40895, footnote number 62 that reads “42 CFR 483.35,

https://www.whitehouse.gov/briefing-room/statements-releases/2022/02/28/factsheet-protectingseniors-and-people-withdisabilities-by-improving-safety-and-quality-of-carein-the-nationsnursing-homes/.” is corrected to read “42 CFR 483.35(b)(1)”.
3. On page 40898, Table 2, is corrected to read:
TABLE 2: Requirements for the LTC Staffing Statutory Waivers by Facility Type
Facility
Type*

NFs*

SNFs*

Section 1919(b)(4)(C)(ii) of the Act

Section 1819(b)(4)(C)(ii) of the Act

§ 483.35(e) Nursing services. Nursing
facilities: Waiver of requirement to
provide licensed nurses on a 24-hour basis
(final rule redesignates this paragraph as
paragraph (f)))

§ 483.35(f) Nursing services. SNFs: Waiver of the
requirement to provide services of a registered
nurse for more than 40 hours a week. (final rule
redesignates this paragraph as (g) and revises
title)

The State can waive the following
requirements:

The Secretary can waive the following
requirement:

1. The facility must provide services by
sufficient numbers of each of the
following types of personnel on a 24-hour
basis to provide nursing care to all
residents in accordance with resident care
plans.

1. The facility must use the services of a registered
nurse for at least 8 consecutive hours a day, 7 days
a week (final rule revises to must have a RN onsite
24 hours per day, for 7 days a week).

Statutory
Citation

Regulatory
Citation and
requirements
for
participation
that can be
waived

2. The facility must use the services of a
registered nurse for at least 8 consecutive
hours a day, 7 days a week (final rule
revises to must have a RN onsite 24 hours
per day, for 7 days a week).
Criteria that
must be met
to be eligible
for the
statutory
waiver

1. The facility must demonstrate to the
satisfaction of the State that the facility has
been unable, despite diligent efforts
(including offering wages at the
community prevailing rate for nursing
facilities), to recruit appropriate personnel.
2. The State determines that a waiver of
the requirement will not endanger the
health or safety of individuals staying in
the facility.
3. The State finds that, for any periods in
which licensed nursing services are not
available, a registered nurse or a physician
is obligated to respond immediately to
telephone calls from the facility.
4. A waiver is subject to annual State
review.
5. In granting or renewing a waiver, a
facility may be required by the State to use

1. The facility is located in a rural area and the
supply of skilled nursing facility services in the
area is not sufficient to meet the needs of
individuals residing in the area.
2. The facility has one full-time registered nurse
who is regularly on duty at the facility 40 hours a
week.
3. The facility either—
•

Has only patients whose physicians have
indicated (through physicians' orders or
admission notes) that they do not require
the services of a registered nurse or a
physician for a 48-hours period, OR

•

Has made arrangements for a registered
nurse or a physician to spend time at the
facility, as determined necessary by the
physician, to provide necessary skilled
nursing services on days when the regular
full-time registered nurse is not on duty;

Facility
Type*

NFs*

SNFs*

other qualified, licensed personnel.
6. The State agency granting a waiver of
such requirements provides notice of the
waiver to the Office of the State LongTerm Care Ombudsman (established under
section 712 of the Older Americans Act of
1965) and the protection and advocacy
system in the State for individuals with a
mental disorder who are eligible for such
services as provided by the protection and
advocacy agency.
7. The facility must notify residents of the
facility and their resident representatives
of the waiver.

4. The Secretary provides notice of the waiver to
the Office of the State Long-Term Care
Ombudsman (established under section 712 of the
Older Americans Act of 1965) and the protection
and advocacy system in the State for individuals
with developmental disabilities or mental
disorders; and
5. The facility must notify residents of the facility
and their resident representatives of the waiver.
6. The waiver is subject to annual renewal by the
Secretary.

*Note: The State has its own independent discretion to waive the requirements issued under section
1919(b)(4)(C) of the Act. Therefore, dually-certified facilities must meet the requirements outlined for both SNFs
and NFs, whichever is more stringent.

4. On page 40901, third column, first partial paragraph,
a. Lines 19 and 20, the parenthetical that reads “(available at
https://data.bls.gov/oes/#/home)” is corrected to read “(available at
https://www.bls.gov/oes/tables.htm)”.
b. Lines 26 through 29, the parenthetical that reads “(available at
https://www.census.gov/data/tables/timeseries/demo/popest/2020s-countiestotal.html#v2022)” is
corrected to read “(available at https://www.census.gov/data/tables/timeseries/demo/popest/2020s-counties-total.html)”.
5. On page 40909, footnote number 67 that reads
“https://www.osha.gov/sites/default/files/publications/OSHA3905.pdf” is corrected to read
“Recommended Practices for Anti-Retaliation Programs. OSHA, OSHA 3905-01/2017.
Accessed at www.https://www.osha.gov/sites/default/files/publications/OSHA3905.pdf.
Accessed on March 1, 2024.”
6. On page 40911, second column, first partial paragraph, lines 8 through 14, the
sentence that reads “For example, if we were to use the Census Bureau’s definition of ‘urban’,

2,645 counties would be classified as urban,73 while if we were to use OMB’s definition of
‘urban’, 1,252 counties would be considered ‘urban.’74” is corrected to read “For example, if we
were to use the Census Bureau’s definition of ‘urban’, 2,645 areas (combination of counties,
cities, census designated areas) would be classified as urban,73 while if we were to use OMB’s
definition of ‘urban’, 1,252 counties would be considered ‘urban.’74”
7. On page 40919, in the second column,
a. First full paragraph, line 9, the regulatory citation that reads “§ 442.43(c)” is corrected
to read “§ 442.43(b)”.
b. Second full paragraph, line 15, the regulatory citation that reads “§ 442.311(e)” is
corrected to read “§ 441.311(e)”.
8. On page 40920, first column, first paragraph, line 9, the regulatory citation that reads
“§ 442.43(c)” is corrected to read “§ 442.43(b)”.
9. On page 40923, second column, first partial paragraph, line 5, the regulatory citation
that reads “§ 442.43(a)(2)(ix)” is corrected to read “§ 442.43(a)(2)(x)”.
10. On page 40929, first column, first partial paragraph, line 27, that regulatory citation
that reads “§ 442.311(e)(2)” is corrected to read “§ 441.311(e)(4)”.
11. On page 40930, third column, last paragraph, lines 12 and 13, the Federal Register
citation that reads “88 FR 61831 through 61833” is corrected to read “88 FR 61381 through
61383”.
12. On page 40931, third column,
a. Second paragraph, line 1, the regulatory citation that reads “§ 442.43(d)(1)” is
corrected to read “§ 442.43(d)”.
b. Third paragraph, line 1, the regulatory citation that reads “§ 442.43(d)(2)” is corrected
to read “§ 442.43(d)(1)”.
13. On page 40932, first column,
a. First partial paragraph, line 2, the regulatory citation that reads “§ 442.43(d)(3)” is

corrected to read “§ 442.43(d)(2)”.
b. First partial paragraph, line 7, the regulatory citation that reads “§ 442.43(d)(3)” is
corrected to read “§ 442.43(d)(2)”.
c. First full paragraph, line 1, the regulatory citation that reads “§ 442.43(d)(4)” is
corrected to § 442.43(d)(3)”.
14. On page 40934,
a. In the second column, sixth paragraph, lines 7 through 11, the sentence that reads
“Additionally, we are finalizing the newly redesignated paragraph (a)(2)(xi) with a modification
to include nurses and other staff that providing that clinical supervision.” is corrected to read
“Additionally, we are finalizing the newly redesignated paragraph (a)(2)(xi) with a modification
to include nurses and other staff providing clinical supervision.”
b. In the third column, third paragraph, lines 5 through 6, the phrase “and added a crossreference to § 442.43(b)(3).” is corrected to “and in § 442.43(b)(1) added a cross-reference to
§ 442.43(b)(3).”
15. On page 40935, third column, eighth paragraph, lines 3 through 8, the sentence that
reads “Unless otherwise indicated, we obtained all salary information from the May 2022
National Occupational Employment and Wage Estimates, BLS at
https://www.bls.gov/oes/current/oes_nat.htm.” is corrected to read “Unless otherwise indicated,
we obtained all salary information from the May 2022 National Occupational Employment and
Wage Estimates, BLS at https://www.bls.gov/oes/tables.htm.”
16. On page 40948, footnote number 96, that reads “https://data.cms.gov/summarystatistics-on-use-and-payments/medicare-service-type-reports/cms-program-statistics-medicareskilled-nursing-facility.” is corrected to read “https://data.cms.gov/provider-data/dataset/4pq5n9py.”.
17. On page 40949, third column, first full paragraph, line 2, the table reference that
reads “table 21” is corrected to read “table 31”.

18. On page 40992,
a. In the second column, first full paragraph, lines 1 through 9, the sentence that reads
“Using the wage information from the Bureau of Labor Statistics, May 2022 National
Occupational Employment and Wage Estimates, https://www.bls.gov/oes/current/oes_nat.htm,
for medical and health service managers (Code 11–9111), we estimate that the cost of reviewing
this rule is $123.06 per hour, including overhead and fringe benefits.” is corrected to read “Using
the wage information from the Bureau of Labor Statistics, May 2022 National Occupational
Employment and Wage Estimates, https://www.bls.gov/oes/tables.htm, for medical and health
service managers (Code 11–9111), we estimate that the cost of reviewing this rule is $123.06 per
hour, including overhead and fringe benefits.”
b. In the third column, second paragraph, lines 1 through 9, the sentence that reads
“Using the wage information from the Bureau of Labor Statistics, May 2022 National
Occupational Employment and Wage Estimates, https://www.bls.gov/oes/current/oes_nat.htm,
for medical and health service managers (Code 11–9111), we estimated that the cost of
reviewing this rule is $123.06 per hour, including overhead and fringe benefits.” is corrected to
read “Using the wage information from the Bureau of Labor Statistics, May 2022 National
Occupational Employment and Wage Estimates, https://www.bls.gov/oes/tables.htm, for medical
and health service managers (Code 11–9111), we estimated that the cost of reviewing this rule is
$123.06 per hour, including overhead and fringe benefits.”
B. Correction of Errors in the Regulation Text
§ 442.43 [Corrected]
1. On page 40995, third column, seventh paragraph, the regulation text for § 443.43(b)
introductory text, line 22, the reference “§ 438.6(c)” is corrected to read “§ 438.2”.
§ 483.35 [Corrected]
2. On page 40998, second column, sixth full paragraph, line 2, in the regulation text for
§ 483.35(h)(2)(iv), the reference “§ 483.71(b)(4)” is corrected to read “§ 483.71(c)(4)”.


Wilma Robinson,
Deputy Executive Secretary to the Department,
Department of Health and Human Services.

[FR Doc. 2024-13795 Filed: 6/21/2024 8:45 am; Publication Date: 6/24/2024]