Government Updates Nursing Home Regulations

The Federal Government has issued a final rule to update and reform its regulation of long-term care facilities. The final rule, issued by the Centers for Medicare and Medicaid Services (CMS), was formally published in the Federal Register on October 4, 2016.

Federal nursing home regulations have not had a comprehensive update since 1991. Acting CMS Administrator Andy Slavitt describes the updated regulations as “a major step forward to improve the care and safety of the nearly 1.5 million residents in the more than 15,000 long-term care facilities that participate in the Medicare and Medicaid programs.”

Use of Pre-Dispute Arbitration Agreements Restricted

Among its many pages, the new rule limits the use of arbitration provisions in nursing facility admission contracts. Effective November 28, 2016 any long-term care facility that receives federal funding is barred from requiring residents to agree to resolve disputes through private arbitration as a condition of admission to the facility. Here is Administrator Slavitt’s comment on this new limitation.  

The rule makes important changes to strengthen the rights of residents and families in the event that a dispute arises with a facility. Historically, many facilities require residents to agree to binding arbitration clauses when they are admitted to these facilities. These clauses require the resident to settle any dispute that may arise using arbitration rather than the court system. Effective November 28, 2016, our final rule will prohibit the use of pre-dispute binding arbitration agreements. This means that facilities may not require residents to sign pre-dispute arbitration agreements as a condition of admission to that long-term care facility.

Facilities and residents will still be able to use arbitration on a voluntary basis at the time a dispute arises. Even then, these agreements will need to be clearly explained to residents, including the understanding that these arbitration agreements are voluntary, and that these agreements should not prevent or discourage residents and families from talking to authorities about quality of care concerns.

Brief Overview of the New Rule

The new rule includes hundreds of new regulations that will keep lawyers busy for some time. Examples include new provisions requiring facilities to establish formal grievance procedures and provide more training for staff, limiting discharges of residents who are awaiting Medicaid payments, prohibiting "hospital dumping" by facilities, and giving residents and their families more say in care.  

Here is a related news release issued by CMS on September 29, 2016 which provides an overview of some of the changes finalized in the new Rule.

CMS finalizes improvements in care, safety, and consumer protections for long-term care facility residents
Revisions mark first major rewrite of the conditions of participation for long-term care facilities since 1991

Today, the Centers for Medicare & Medicaid Services (CMS) issued a final rule to make major changes to improve the care and safety of the nearly 1.5 million residents in the more than 15,000 long-term care facilities that participate in the Medicare and Medicaid programs. The policies in this final rule are targeted at reducing unnecessary hospital readmissions and infections, improving the quality of care, and strengthening safety measures for residents in these facilities. These changes are an integral part of CMS’s commitment to transform our health system to deliver better quality care and spend our health care dollars in a smarter way, setting high standards for quality and safety in long-term care facilities.

The health and safety of residents of long-term care facilities are our top priorities,” said CMS Acting Administrator Slavitt. “The advances we are announcing today will give residents and families greater assurances of the care they receive.”

To learn more about these efforts to support person-centered care and improved safety for long-term care facility residents, please visit the CMS Blog at http://blog.cms.gov/2016/09/28/commitment-to-person-centered-care-for-long-term-care-facility-residents.

As the first comprehensive update since 1991, this rule will bring best practices for resident care to all facilities that participate in Medicare or Medicaid, implement a number of important safeguards that have been identified by resident advocates and other stakeholders, and include additional protections required by the Affordable Care Act. CMS received nearly 10,000 public comments, which were considered in finalizing this rule.

Changes finalized in this rule include:

• Strengthening the rights of long-term care facility residents, including prohibiting the use of pre-dispute binding arbitration agreements.
• Ensuring that long-term care facility staff members are properly trained on caring for residents with dementia and in preventing elder abuse.
• Ensuring that long-term care facilities take into consideration the health of residents when making decisions on the kinds and levels of staffing a facility needs to properly take care of its residents.
• Ensuring that staff members have the right skill sets and competencies to provide person-centered care to residents. The care plans developed for residents will take into consideration their goals of care and preferences.
• Improving care planning, including discharge planning for all residents with involvement of the facility’s interdisciplinary team and consideration of the caregiver’s capacity, giving residents information they need for follow-up after discharge, and ensuring that instructions are transmitted to any receiving facilities or services.
• Allowing dietitians and therapy providers the authority to write orders in their areas of expertise when a physician delegates the responsibility and state licensing laws allow.
• Updating the long-term care facility’s infection prevention and control program, including requiring an infection prevention and control officer and an antibiotic stewardship program that includes antibiotic use protocols and a system to monitor antibiotic use.

CMS set out to revise the long-term care facility standards and originally issued the proposal being finalized today, in conjunction with the White House Conference on Aging in 2015, which marked the 50^th anniversary of Medicare and Medicaid.

The final rule is available on the Federal Register at https://www.federalregister.gov/public-inspection.

The new provisions which limit arbitration agreements are found at Section 483.70(n) of the final rule. They read as follows:

(n) Binding arbitration agreements.

(1) A facility must not enter into a pre-dispute agreement for binding arbitration with any resident or resident’s representative nor require that a resident sign an arbitration agreement as a condition of admission to the LTC facility.

(2) If, after a dispute between the facility and a resident arises, and a facility chooses to ask a resident or his or her representative to enter into an agreement for binding arbitration, the facility must comply with all of the requirements in this section.

(i) The facility must ensure that:

(A) 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 understands, and

(B) The resident acknowledges that he or she understands the agreement.

(ii) The agreement must:

(A) Be entered into by the resident voluntarily.

(B) Provide for the selection of a neutral arbitrator agreed upon by both parties.

(C) Provide for selection of a venue convenient to both parties.

(iii) A resident’s continuing right to remain in the facility must not be contingent upon the resident or the resident’s representative signing a binding arbitration agreement.

(iv) The agreement must not contain any language that prohibits or discourages the 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).

(v) The agreement may be signed by another individual if:

(A) Allowed by state law;

(B) All of the requirements in this section are met; and

(C) That individual has no interest in the facility.

(vi) When the facility and a resident resolve a dispute with 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.