On October 4, 2016, the Federal Register published the Centers for Medicare and Medicaid Services revised requirements for long term care facilities. 185 pages are devoted to publishing comments and responses, charts and the regulations. The regulations will be effective in three phases:
- Phase 1 regulations must be implemented by November 28, 2016;
- Phase 2 by November 28, 2017; and
- Phase 3 by November 28, 2019.
An implementation timeframe chart listing each of the regulatory sections with the accompanying implementation deadline is included in the Federal Register publication.
CMS desired to modernize the regulations to address the increasing clinical complexity of nursing home residents, increase safety, protect individual choice, encourage better quality assurance and enforce performance improvement. The regulation generating the most attention is the prohibition of pre-dispute arbitration agreements.
Binding Arbitration Agreements.
Effective November 28, 2016, a long term care facility may not require a resident to enter into a pre-dispute agreement for binding arbitration and may not make admission to a facility contingent on signing such an agreement. Section 483.70 (n). The issue of the use of arbitration agreements in long term care facilities has been addressed by the courts of various states, with inconsistent results. With this regulation, CMS now provides a consistent approach for such facilities, albeit an approach that may not appeal to the long term care industry in general.
Post-dispute agreements. The regulations permit post-dispute arbitration agreements only if the facility ensures that “the agreement is explained to the resident and their representative in a form and manner that he or she understands, including in a language the resident and their representative understand, and the resident acknowledges that he or she understands the agreement.”
The resident must voluntarily enter into the post-dispute agreement; the facility cannot condition the continued stay of the resident in the facility on signing an arbitration agreement. The agreement must provide for a neutral arbitrator to be agreed upon by both parties and the arbitration must permit selection of a venue convenient to both parties. The agreement cannot circumscribe the rights of a resident or anyone else from “communicating with federal, state, or local officials, including but not limited to, federal and state surveyors, other federal or state health department employees, and representatives of the Office of the State Long-Term Care Ombudsman, in accordance with §483.10(k).”
Someone other than the resident may sign the agreement if allowed by state law.
If a dispute is resolved by arbitration, a copy of the signed agreement for binding arbitration and the arbitrator’s final decision must be retained by the facility for 5 years and be available for inspection upon request by CMS or its designee.
The regulation does not affect existing pre-dispute arbitration agreements.
While circumscribing the use of arbitration agreements in long term care facilities has been the focus of commentary, there are new sections and new provisions requiring additional compliance efforts, some of which include:
- Section 483.21 – New Section – Comprehensive Person-Centered Care Planning – Within 48 hours of admission, a facility must develop and implement a baseline care plan for each resident. Members of the interdisciplinary team are broadened to include a nurse aide and a member of the food and nutrition services staff. The discharge planning process shall include the requirements mandated by the Improving Medicare Post-Acute Care Transformation Act of 2014 (IMPACT Act).
- Section 483.30 – New Provision – Physician Services – Physicians may now delegate dietary orders to qualified dieticians or other clinically qualified nutrition professionals and may delegate therapy orders to therapists, as permitted under state law.
- Section 483.35 – New Provision – Nursing Services – Nurse aides are now included in the term “other nursing personnel.” Additional provisions address nurse aide training and competency, checking the nurse aide registry of multiple states, annual training focused on the outcome of the nurse aide’s annual review and restrictions on the qualifications of non-permanent nurse aide employees.
- Section 483.40 – New Section – Behavioral Health Services – Facilities must be able to provide the services needed to address the necessary services indicated for each resident as a result of the annual assessment.
- Section 483.50 – New Section – Laboratory, Radiology and Other Diagnostic Services – A physician assistant, nurse practitioner or a clinical nurse specialist may order laboratory, radiology and other diagnostic services for a resident in accordance with state law and the specific scope of a state’s practice act.
- Section 483.55 – New Provision – Dental Services – A “prompt” referral for lost or damaged dentures means a referral made within 3 business days.
- Section 483.65 – New Provision – Specialized Rehabilitative Services – Respiratory services are now included as a specialized rehabilitative service.
- Section 483.70 – New Provision – Administration – Facilities are now required to conduct, document and annually review a facility-wide assessment to determine the resources necessary to competently care for its residents and properly operate both on a day-to-day basis and in emergencies.
- Section 483.75 – New Provision – Quality Assurance and Performance Improvement – The Affordable Care Act mandates in Section 6102 that the Secretary establish and implement in skilled nursing and nursing facilities a QAPI program focusing on systems of care, outcomes of care and quality of life. The former QAA committee membership requirements are now a minimum requirement and the Infection Control and Prevention Officer participate in the QAA committee. The QAA committee reports directly to the facility’s governing body regarding its activities, including implementation of the QAPI program.
- Section 483.85 – New Section – Compliance and Ethics Program – Each facility must develop, implement and maintain an effective compliance and ethics program that meets the standards detailed in the regulation.
- Section 483.90 – New Provision – Physical Environment – Facilities that are constructed, reconstructed or newly certified after the effective date of this regulation must be built to accommodate no more than 2 residents in a bedroom. Each resident room must be equipped with a bathroom having at least a commode and a sink.
- Section 483.95 – New Section – Training Requirements – Each facility must develop, implement and maintain an effective training program for existing staff, independent contractors and volunteers consistent with their roles. Topics addressed shall include communication, resident’s rights and facility responsibilities, neglect, abuse, exploitation, quality assurance and performance improvement and compliance and ethics.