CMS Issues Proposed Rule on Requirements for Long-Term Care Facilities; Finalizes Arbitration Agreements

Last week the Centers for Medicare & Medicaid Services (CMS) issued two rules, a proposed rule on requirements for long-term care (LTC) facilities and a final rule for LTC facilities arbitration agreements. The proposed rule for requirements for LTC facilities is aimed at easing some of the requirements for nursing homes to participate in Medicare and Medicaid by giving facilities more flexibility over their internal quality and ethics programs, decreasing the frequency of facility assessments, and reducing the amount of paperwork the facilities must submit. Th final arbitration rule repeals the prohibition on LTC facilities entering into pre-dispute, binding arbitration agreements with their residents.  However, this final rule includes protections of residents’ rights by prohibiting LTC facilities from requiring residents to sign binding arbitration agreements as a condition of admission to, or as a requirement to continue to receive care at, that facility.

The requirements for LTC facilities proposed rule includes some of the following provisions:

• Facility assessments: The proposed rule would reduce the frequency of facility assessment to every two years. Currently, nursing homes are required to conduct a detailed facility-wide assessment at least once a year to determine staffing requirements, emergency preparedness, and other facility needs.
• Quality Assurance and Performance Improvement Program (QAPI): The proposed rule would roll back many of the specific directives under the QAPI program. It would retain introductory regulatory text that requires a facility’s QAPI program to be ongoing and comprehensive and to address the full range of care and services, but it would remove detailed regulatory requirements that set forth how a program meets those objectives. The Affordable Care Act required the Department of Health and Human Services (HHS) to implement quality assurance and performance improvement measures for nursing homes, and the agency issued detailed regulatory directives under that authority as part of its 2016 final rule.
• Pharmacy Services: CMS proposes to remove the existing requirement that PRN (as needed) prescriptions for antipsychotics cannot be renewed unless the attending physician or prescribing practitioner evaluates the resident for the appropriateness of that medication. The proposed revision would allow each facility to allow PRN orders for all psychotropic medication to be extended beyond 14 days if the attending physician or prescribing practitioner believes it appropriate and documents his or her rationale in the resident’s medical record and indicates the duration of the PRN order.
• Ethics and Compliance: CMS proposes to remove many of the requirements that are not already in place by law. Proposed revisions include removing the requirements for a compliance officer and compliance liaison as well as revising the requirements for reviewing the program from annually to biennially.
• Resident Rights: Existing regulations require facilities to make sure residents remain informed of the name and specialties of their physician, as well as other primary care professionals responsible for their care. The proposed rule would change that requirement so facilities would need to ensure only that residents are informed of their primary care physician’s information.
• Infection Control: Nursing homes are required to establish infection prevention and control programs and designate at least one staff member as an infection preventionist. The rule would ease the requirement that each nursing home’s infection preventionist work at least part-time at the facility. Instead, an infection preventionist would merely need to have “sufficient time at the facility to meet the objectives” of the infection prevention program.
• Admission, Transfer, and Discharge Rights: CMS proposes to revise the requirement for facilities to send discharge notices to a state LTC ombudsman by applying this requirement to “facility-initiated involuntary transfers and discharges” only.

CMS also noted that it will delay requirements around compliance and ethics as well as QAPI until November 28, 2020, to avoid unnecessary work, confusion, and burden associated with implementing provisions that could change.

Arbitration Final Rule

CMS’ final rule updating the requirements nursing homes must meet to use binding arbitration agreements was also released this week. The proposal removes the ban on binding arbitration agreements while requiring nursing homes to ensure residents can choose the method of dispute resolution they want. CMS is allowing binding arbitration agreements but will prohibit nursing homes from requiring residents to sign binding arbitration agreements as a condition for receiving care and will require nursing homes to inform residents or their representatives that they are not required to sign a binding arbitration agreement. Finally, CMS is prohibiting nursing home arbitration agreements from including language preventing residents or anyone else from communication with federal, state, or local officials.

The Society will review the proposed requirements rule and submit comments by the September 16, 2019, deadline.

To read the rule requirements for LTC facilities, click here.

To read the full final arbitration rule click here.