September 29, 2016

CMS Releases New Nursing Facility Regulations:
Both Pluses and Minuses for Nursing Facility Residents

The Centers for Medicare & Medicaid Services has just released a comprehensive revision of federal nursing facility regulations.   The regulations and explanatory material (over 700 pages total) are available here.  The positives for nursing facility residents include expanded training requirements and a new provision that an initial care plan be developed and implemented within 48 hours. The negatives include a failure to improve nurse staffing standards, and weakening the regulations limiting antipsychotic drug use.
 
Some important provisions are highlighted below.  Additional analysis of the regulations will be developed in coming weeks by Consumer Voice, the Center for Medicare Advocacy, and Justice in Aging.
 
Quality of Care
 
Staffing:  Although inadequate staffing is the greatest problem in nursing facilities today, the new regulations do not include a minimum staffing standard or a requirement for a 24-hour Registered Nurse.  Instead, the new regulations continue current policy: requiring “sufficient” staffing levels, and registered nurse presence for eight hours daily.  Staff must have “appropriate competencies and skills sets,” and staffing levels must take into consideration the number, acuity and diagnoses of the resident population, based on a newly mandated facility assessment.
 
Person-centered care: The previous regulations required that care be individualized, and based on a care plan, but the new regulations add emphasis. The new regulations define person-centered care and require that facilities learn more about who the resident is as a person, provide greater support for resident preferences, and give residents increased control and choice.
 
Care planning:  Under the new regulations, facilities must develop and implement a baseline care plan for a new resident within 48 hours of admission.  The care planning process itself calls for greater resident involvement and participation.  In addition, the certified nursing assistant responsible for the resident, and a member of the food and nutrition services staff must participate in the care planning process.
 
Abuse, neglect and exploitation:  Provisions related to abuse, neglect and exploitation are now included in a separate section, which brings more attention and focus to these issues.  New protections include prohibiting licensed individuals with a disciplinary action from being hired and requiring that suspicion of a crime be reported to law enforcement and the state survey and certification agency.
 
Antipsychotic drugs:  Many residents with dementia are inappropriately given harmful antipsychotic drugs, despite strong current federal rules. The new regulations water down existing protections by folding antipsychotic drugs into a broader category of psychotropic drugs and moving them from quality of care regulations to pharmacy services.  
 
Training:  Training requirements have been expanded to apply to all staff, contractual employees, and volunteers.  Mandatory topics  include communication, residents’ rights, and abuse, neglect and exploitation. Certified nursing assistants will be required to receive training on dementia management and resident abuse prevention.
 
 
Resident Rights
 
Prohibiting Pre-Dispute Arbitration:  Currently, many nursing facility admission agreements include provisions obligating the resident to have disputes adjudicated through private arbitration.  Such “pre-dispute” arbitration agreements now will be prohibited.  Arbitration agreements will be allowed only when the events at issue occurred before the arbitration agreement was signed.
 
Improvements to Involuntary Transfer-Discharge Procedures:  The new regulations specify that transfer-discharge for non-payment is inappropriate when the resident has submitted necessary paperwork to a third-party payor (such as Medicaid), and that payor is now evaluating the claim for payment.  Also, facilities now will be obligated to send a copy of each transfer-discharge notice to the state’s long-term care ombudsman program, which is available to advise the resident.
 
Limiting Facility’s Ability to “Dump” Resident at Hospital:  In an effort to evade transfer-discharge requirements, some facilities “dump” residents by refusing to readmit them from hospitalizations.  To address the problem, the new regulations explicitly require a facility to follow the transfer-discharge procedures when the facility claims that a hospitalized resident cannot return to the facility.
 
Modifying Residents’ Rights to Have Visitors:  The new regulations continue current law providing each resident with a right to receive visitors at any time.  In an unwelcome change, however, if a visitor is not a family member, the right to receive a visit now is “subject to reasonable clinical and safety restrictions,” as set forth in facility policy.    
 
Grievances: Far too often, complaints from residents and families have been dismissed or not taken seriously.  The regulations will now call for facilities to have a grievance policy and a grievance official to oversee the grievance process.   Complainants will receive a written grievance decision that includes the steps taken to investigate, a summary of the finding or conclusions, a statement as to whether the grievance was confirmed or not confirmed, and the action taken or to be taken by the facility.
 
This release has been jointly developed by Consumer Voice, the Center for Medicare Advocacy and Justice in Aging.