The Massachusetts Department of Public Health (DPH) continues its efforts to revise its regulations to comply with Executive Order 562, which requires all state agencies to review its regulations. Long-Term Care Facilities (LTCFs) must currently comply with 3 separate regulations: 105 CMR 150.00 (Licensing of Long-Term Care Facilities); 105 CMR 151.000 (General Standards of Construction for LTCFs in Massachusetts); and 105 CMR 153.000 (Licensure Procedure and Suitability Requirements for LTCFs). (Note: these links will bring you to DPH’s redlined versions, where applicable. The corresponding presentations by DPH staff to the Public Health Council (PHC) at the PHC’s November 9, 2016 meeting are available here.)

Standards

As a starting point, DPH would rescind 105 CMR 151.000 and incorporate relevant provisions regarding physical plant standards into the Licensing Regulation at 105 CMR 150.000 (the Licensing Regulation). Since the Licensing Regulation already contains duplicative physical plant standards, DPH hopes that rescission and incorporation will ensure compliance with structural and architectural guidelines, while providing greater clarity. Among the changes to the standards to be incorporated in the Licensing Regulation are updates to reflect current construction standards and compliance with Architectural Access Board regulations. Older facilities take note: DPH proposes to eliminate the “grandfathering” provision requiring facilities constructed prior to 1968 to only meet the standards in effect at the time of construction, requiring such facilities to meet more current standards. In its presentation, DPH notes that these pre-1968 standards exist in “few, if any, currently operating facilities.”

What’s in a name? The proposed changes to the Licensing Regulations include changes in terminology, including in the name of the regulations. The Licensing Regulation sets out the standards governing LTCFs; therefore, DPH proposes to rename these regulations as “Standards for Long-Term Care Facilities,” in part to eliminate confusion with Licensure Procedure and Suitability Requirements for LTCFs at 105 CMR 153.000 (Licensure Procedure/Suitability Regulations). While a small change, it should make for a clearer roadmap for those using the LTCF regulations. Other changes will bring regulatory terms in line with updated terms that have become standard in the industry. Thus, “resident” replaces “patient,” and “primary care provider” will now include nurse practitioners and physician assistants. Perhaps in a nod to DPH’s priority concern with the opioid crisis, DPH proposes replacing the current prohibition on employment of substance abusers in LTCFs with a prohibition on employment of an individual who cannot perform the job duties or whose employment would pose a threat to the health, safety and welfare of residents.

In a variety of areas, DPH appears to give LTCFs more latitude to make facility- and resident-specific decisions. For example, the current requirement regarding integration of the use of automated external defibrillators (AEDs) when needed in emergencies is replaced with a more general requirement that LTCFs meet the emergent needs of residents, including use of AEDs and maintenance of an emergency medication kit. PHC member Dr. Alan Woodward expressed concerns regarding the ability of LTCFs to respond to emergencies and urged DPH to considered requiring ACLS-trained staff be on site. PHC member Dr. Michael Kneeland urged DPH to define what a kit must include, which DPH representatives indicated would be stated in sub-regulatory guidance.

DPH proposes to put the responsibility for the implementation of policies and procedures regarding physician and medical services squarely on the LTCF’s medical director, both to assure coordination between LTCFs and medical directors, and to align with federal requirements.

As the population of Level II and Level III LTCFs evolves, DPH proposes to remove the requirement that these facilities perform additional medical clearance before admitting a resident with a behavioral health diagnosis, which DPH asserts is unnecessary because all residents, including those with a behavioral health diagnosis, should receive assessment, care planning and treatment. DPH also replaces specific required nursing care hours for each level of care (e.g., Level I, Level II and Level III LTCFs), with a requirement based on acuity and census, rather than hourly minimums. This provides flexibility and meets CMS requirements and reflects that currently reported nursing hours exceed the outdated requirements.

DPH proposes to add a requirement that activities must be available for residents with disabilities or for whom English is not their primary language, which aligns with federal requirements.

DPH would eliminate outdated equipment requirements, including those related to use of restraints, removing provisions allowing restraints to be used on a resident upon physician orders and reflecting current CMS regulations (requiring that LTCFs assess the resident, determine possible alternatives to restraints, and use the least restrictive means possible to meet the safety and care needs of the resident) and state abuse laws. In response to a question form PHC member Meg Doherty, MSN, ANP-BC, MBA, DPH staff confirmed that these provisions apply to both physical and chemical restraints.

Those who have maintained or had occasion to review the hard-bound record books for doctors’ orders and medication records will be relieved to hear that DPH is removing these antiquated requirements to give LTCFs the flexibility to implement policies and procedures that incorporate modern modalities to assure accurate resident records, including medication records, are maintained in an accessible way. This should also help reduce drug diversion.

Licensure Procedure and Suitability Requirements

The Licensure Procedure/Suitability Regulations provide for the scrutiny of new and existing LTCF licensees to assure they are suitable for licensure. They also address remedies available to DPH, including a prohibition on new admissions, if a LTCF is not in compliance with certain regulations and statutes.

The proposed amendments list substantial non-compliance with the following statutes and regulations as reasons for which the Commissioner may issue an order restricting or prohibiting admissions: M.G.L. C. 111, SS 70E, 71-72L½., 105 CMR 150.000, 105 CMR 153.000, or 105 CMR 155.000, or, for a LTCF that participates in the Medicare or Medicaid program, the federal conditions of participation at 42 CFR 483 The proposed amendments also clarify the LTCF’s appeal process for such an order under 105 CMR 153.018(D). In a shift in process, when a license revocation action commences, the LTCF must notify its own residents of the action, as opposed to current process requiring DPH to do so.

DPH wants to streamline provisions regarding the licensure application and suitability review process. For example, DPH proposes removing the requirements that applications be notarized, expired paper license be mailed back to DPH, and an attestation form be provided for publication of any notice (in addition to the actual copy of a published notice, itself).

While the proposed amendments to operating bed capacity provisions (105 CMR 153.028) themselves, didn’t receive comments from PHC members, PHC member Paul Lanzikos, MBA, initiated a discussion of DPH’s current policy permitting LTCFs to maintain licensed beds as “beds out of service” with DPH’s approval and questioned the current wisdom and utility of this policy. DPH staff noted that, with DPH’s moratorium on “new” LTCF beds, beds out of service can be a useful tool to bring access to LTCF beds to geographic areas that may have need for increased bed capacity. Mr. Lanzikos indicated he would be offering comments on this issue.

In addition, PHC members questioned the necessity of retaining the current LTCF “levels” I-IV. Director Lohnes noted that MassHealth requires that participating facilities have both Level II (Skilled Nursing Care Facility) and Level III (Supportive Nursing Care Facility) beds, and that there are currently no Level I (Intensive Nursing and Rehabilitative Care Facility) beds in service. DPH staff indicated that DPH would prefer to retain the Level I designation to retain flexibility.

UPDATE (November 22, 2016): DPH has released a Notice of Public Hearing for the Long Term Care Facility regulations. The public hearing will be held at 12:00p.m. on December 19, 2016 and written testimony is due by 5:00p.m. on December 23, 2016.