CMS is updating requirements for SNFs/NFs to participate in Medicare and Medicaid programs. The changes constitute good policy - especially for the highly decentralized nature of the long term care industry - because it attempts to align these requirements to the recent federal policy shift that emphasizes quality. It won't be easy. So many SNFs/NFs operate in communities with limited clinical talent. For operators that have embraced quality care, it should be a better fit. CCP, HCP, VTR, HCN, OHI, ENSG, KND, DVCR
Last week, CMS released the latest in its efforts to align its drive to value based purchasing with the requirements for participation in the Medicare and Medicaid Programs. The final “Reform Requirements for Long Term Care Facilities” was released last week and details a long list of new requirements phased in over three years at a cost of about $800 million a year. CMS estimates the cost per facility at around $60,000 in the first year and $55,000 in subsequent years.
The changes all amount to good policy and for a high quality, accredited nursing facility, they probably won’t be that onerous. For lower quality facilities especially those without robust labor pools, meeting some of the new requirements will be a challenge. For those lower quality facilities, the stakes are high. Failure to meet the requirements established by this final rule can result in a revocation of Medicare and Medicaid provider privileges – tantamount to being put out of business.
Not surprising, this rule was a hot topic among providers. CMS received over 9,000 public comments in response to this 2015 proposal. A number of these comments, to CMS anyway, appear to demonstrate broad misunderstanding of current Medicare and Medicaid requirements. So much is the case that CMS took the relatively unusual step of enumerating these misunderstandings, or more charitably, misinterpretations, of the current requirements and how they are changing. CMS rightly refers to the lack of understanding of current requirements as “troubling” no doubt because it indicates widespread non-compliance.
To assuage some of the industry’s concerns, CMS will phase in the requirements. Phase One requirements will be effective with the finalization of the new regulations. Phase Two and Phase Three will begin one year and three years, respectively, after effective date of the rule.
Below, we highlight some of the new requirements in the rule that may have a significant operational or financial impact on providers. In each case, we note the phase in which the provision will be effective.
Freedom from abuse, neglect and exploitation. CMS is requiring facilities to investigate and report all allegations of abuse. Facilities cannot employ individuals who have had a disciplinary action taken against their professional license by a state licensure body as a result of a finding of abuse, neglect, mistreatment of residents or misappropriation of their property.
The prohibition on employment of professionals who have been the subject of a finding of abuse, neglect and mistreatment of residents is an extension of an existing requirement related to nurses’ aides. The requirement now extends to all types of professionals who may work in long term care facilities like nursing homes including physicians, nurses and social workers.
Primarily effective in Phase 1 with a few exceptions.
Admission, transfer and discharge rights. CMS is requiring that a transfer or discharge be documented in the medical record and that specific information be exchanged with the receiving provider or facility when a resident is transferred. CMS is requiring that facilities cannot request or demand residents or potential residents waive their rights to Medicare or Medicaid benefits or to any rights conferred by applicable state, federal and local licensing or certification laws. CMS is also prohibiting facilities from requesting or requiring residents or potential residents to waive any potential facility liability for losses of personal property. They are also requiring that a nursing facility must disclose and provide to a resident or potential resident, prior to time of admission, notice of any special characteristics or service limitations of the facility.
CMS is clarifying regulations that a resident could be discharged when the safety of other individuals is endangered due to the clinical or behavioral status of that resident. They are also revising existing regulations to clarify that provisions for discharge as a result of non–payment of facility charges would not apply unless the resident did not submit the necessary paperwork for third party payment or until the third party, including Medicare or Medicaid, denied the claim and the resident refused to pay for his or her stay.
Implemented in Phase One except for documentation on discharge which is effective in Phase Two.
Resident Assessments. CMS is clarifying what constitutes appropriate coordination of a resident’s assessment with the Preadmission Screening and Resident Review (PASARR) program under Medicaid.
Implemented in Phase One.
Comprehensive Person-Centered Care Planning. CMS is requiring facilities to develop and implement a baseline care plan for each resident, within 48 hours of their admission, which includes the instructions needed to provide effective and person-centered care that meets professional standards of quality care. CMS added a nurse aide and a member of the food and nutrition services staff to the required members of the interdisciplinary team that develops the comprehensive care plan.
They are requiring that facilities develop and implement a discharge planning process that focuses on the resident’s discharge goals and prepares residents to be active partners in post-discharge care, in effective transitions, and in the reduction of factors leading to preventable re-admissions. CMS is also implementing the discharge planning requirements mandated by The Improving Medicare Post-Acute Care Transformation Act of 2014 (IMPACT Act) by revising, or adding where appropriate, discharge planning requirements for LTC facilities.
CMS has taken a similar approach to care plans and interdisciplinary teams in the proposed but not yet finalized Conditions of Participation for Home Health Agencies which would help align these two post-acute sectors.
Implemented in Phase One except for baseline care plan which will be implemented in Phase Two.
Quality of Care and Quality of Life. CMS is proposing that facilities address their residents’ ability to perform activities of daily living (ADLs) and establish that, based on the comprehensive assessment of a resident and consistent with the resident’s needs, choices and preferences, the facility must provide the necessary care and services to maintain or improve, to the extent practicable, the resident's abilities to perform his or her activities of daily living and to ensure that those abilities do not diminish unless the diminution is unavoidable as a result of the individual's clinical condition.
Implemented primarily in Phase One.
Nursing Services. CMS is adding a competency requirement for determining the sufficiency of nursing staff, based on a facility assessment, which includes but is not limited to the number of residents, resident acuity, range of diagnoses, and the content of individual care plans.
In response to this proposal, CMS received a lot of comments including many from patient advocates who felt CMS should mandate 24/7 nurse availability and specific ratios. CMS declined to adopt the commenter’s suggestion and instead is using a looser standard. The higher standard, even if it could be accomplished, would likely result in over 13,000 facilities needing to “staff up.”
Implemented in Phase One with exception of use of facility assessment for determining sufficient number and competencies of staff.
Behavioral Health Services. CMS is adding a requirement to provide the necessary behavioral health care and services to residents, in accordance with their comprehensive assessment and plan of care. They are adding “gerontology” to the list of possible human services fields from which a bachelor degree could provide the minimum educational requirement for a social worker.
Implemented in Phase Two with certain section implemented in Phase One and Three.
Pharmacy Services. CMS is requiring that a pharmacist review a resident’s medical chart during each monthly drug regimen review. They are revising existing requirements regarding “antipsychotic” drugs to refer to “psychotropic” drugs and define “psychotropic drug” as any drug that affects brain activities associated with mental processes and behavior. CMS has added several provisions intended to reduce or eliminate the need for psychotropic drugs, if not clinically contraindicated, to safeguard the resident’s health.
Implemented in Phase One except for medical chart review and provisions related to psychotropic drugs which will be implemented in Phase Two.
Laboratory, radiology and other diagnostic services. Current regulations require that these diagnostic services be ordered by an attending physician. CMS is clarifying that a physician assistant, nurse practitioner or clinical nurse specialist may order laboratory, radiology, and other diagnostic services for a resident in accordance with state law, including scope-of-practice laws.
Implemented in Phase One.
Dental Services. Currently, CMS regulations require that facilities assist residents in obtaining appropriate dental services.at the resident’s expense for SNF residents and as covered under the state plan for NF residents. Under the new regulations CMS is also prohibiting SNFs and NFs from charging a Medicare resident for the loss or damage of dentures determined in accordance with facility policy to be the facility’s responsibility, and are adding a requirement that the facility have a policy identifying those instances when the loss or damage of dentures is the facility’s responsibility.
Implemented in Phase One except for development of policy related to loss or damage of dentures and referral for dental services which will be implemented in Phase Two.
Food and Nutrition services. In order to improve the diet of nursing facility residents, CMS is requiring facilities to provide each resident with a nourishing, palatable, well balanced diet that meets his or her daily nutritional and special dietary needs, taking into consideration the preferences of each resident. They are also requiring facilities to employ sufficient staff, including the designation of a director of food and nutrition service, with the appropriate competencies and skills sets to carry out the functions of dietary services while taking into consideration resident assessments and individual plans of care, including diagnoses and acuity, as well as the facility’s resident census.
Implemented in Phase One except for linking services to facility assessment which will be implemented in Phase Two. The hiring of dietitians will be implemented five years after effective date of the rule.
Specialized Rehabilitation Services. Under current regulations, a facility must provide specialized rehabilitative services including, but not limited to, physical therapy, speech-language pathology, occupational therapy, and mental health rehabilitative services for a mental disorder. To that list CMS is adding respiratory therapy. In the often confusing way that CMS crafts policy, it is also insisting the change does not change Medicare benefit policy regarding respiratory therapy. If the facility must rely on an outside provider for respiratory therapy, it must be Medicare and Medicaid qualified.
Implemented in Phase One.
Outpatient Rehabilitation Services. Currently the provision of outpatient therapy services by a long term care facility to a beneficiary that does not reside in the facility is not regulated.. CMS is requiring that a LTC facility adhere to standards similar to hospitals. The new requirements are:
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If the facility provides outpatient rehabilitation, physical therapy, occupational therapy, audiology or speech-language pathology services, the services must meet the needs of the patients in accordance with acceptable standards of practice and the facility must meet certain requirements.
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The organization of the service must be appropriate to the scope of the services offered.
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The facility must assign one or more individuals to be responsible for outpatient rehabilitative services and that the individual responsible for the outpatient rehabilitative services must have the necessary knowledge, experience, and capabilities to properly supervise and administer the services.
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The facility must have appropriate professional and nonprofessional personnel available at each location where outpatient services are offered.
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Physical therapy, occupational therapy, speech-language, pathology or audiology services, if provided, must be provided by qualified physical therapists, physical therapist assistants, occupational therapists, occupational therapy assistants, speech-language pathologists or audiologists.
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Services must only be provided under the orders of a qualified and licensed practitioner who is responsible for the care of the patient, acting within his or her scope of practice under state law and that all rehabilitation services orders and progress notes must be documented in the patient's clinical record.
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The provision of care and the personnel qualifications must be in accordance with national acceptable standards of practice.
Implemented in Phase One.
Administration. Facilities are now required to address through a facility assessment the facility’s resident population (that is, number of residents, overall types of care and staff competencies required by the residents, and cultural aspects), resources (for example, equipment and overall personnel), and a facility-based and community-based risk assessment.
CMS is also prohibiting the use of binding arbitration agreements with a resident or their representative until after a dispute arises between the parties. In other words, CMS is prohibiting the use of pre-dispute binding arbitration agreements.
In recent years, nursing facilities have received attention for their use of binding arbitration agreements signed at the time of admission. Congress and a number of state Attorney Generals have pleaded with CMS to prohibit them. In response to this provision, CMS received a lot of mail from nursing home lawyers but was resolute. The provision stayed.
Implemented in Phase One except for facility assessment which will be implemented in Phase Two.
Quality Assurance and Performance Improvement. CMS is requiring all LTC facilities to develop, implement and maintain an effective comprehensive, data-driven QAPI program that focuses on systems of care, outcomes of care and quality of life.
This provision is a requirement of the Affordable Care Act and is designed so that SNFs and NFs develop their own program but they are held to account for that program by state and federal regulators. This approach is also under consideration for the home health agencies Conditions of Participation which should be finalized next year.
Quality in SNFs and NFs has long been a concern for CMS and state regulators. This concern has given rise to the readmission programs and other quality programs throughout the health care system. For LTCs that have submitted to accreditation, installing a CMS quality program is probably more of the same. The struggle will be among SNF providers that have not valued quality.
Implemented in Phase Three with a few exceptions.
Infection Control. CMS is requiring facilities to develop an Infection Prevention and Control Program (IPCP) that includes an Antibiotic Stewardship Program and designate at least one Infection Preventionist (IP).
Implemented in Phase One except for antibiotic stewardship and infection preventionists which will be implemented in Phases Two and Three respectively.
Physical Environment. Facilities that are constructed, re-constructed, or newly certified after the effective date of this regulation will accommodate no more than two residents in a bedroom, according to CMS. They are also requiring facilities that are constructed, or newly certified after the effective date of this regulation to have a bathroom equipped with at least a commode and sink in each room. Each facility will be required to install a call system at each resident’s bedside.
Implemented in Phase One
