LeadingAge Calls for Delay, Revision of Nursing Home Requirements of Participation

Regulation | August 28, 2017 | by Jennifer Hilliard

New nursing home requirements of participation in Medicare and Medicaid should be delayed and revised to be more flexible and cost-effective.

On October 4, 2016, the Centers for Medicare and Medicaid Services (CMS) issued the final rule overhauling the system of requirements nursing homes must meet in order to participate in the Medicare and Medicaid programs. The final rule set out substantial new requirements affecting every aspect of nursing homes’ operations. It must be understood that nursing homes’ compliance with CMS requirements of participation is surveyed on an annual basis and failure to comply with each and every requirement is punishable by heavy fines and other serious penalties.

Recognizing the complexity and comprehensiveness of the changes mandated by the final rule, CMS split the new requirements into three phases with progressive effective dates. The first phase of the new requirements went into effect November 28, 2016, barely eight weeks after the rule was published. Phase II will go into effect on November 28, 2017 and Phase III, which sets out the most far-reaching and difficult to achieve requirements, will go into effect on November 28, 2019.

The current CMS leadership has announced that civil monetary penalties and other enforcement actions will not be imposed on nursing homes for deficiencies in care cited under the Phase II requirements for a year following the November 28, 2017 effective date. However, several of the new requirements remain excessively costly and burdensome for nursing homes. In particular:

  • Facility assessment: The requirement that nursing homes conduct an annual, comprehensive assessment of all relevant factors involved in facility operation and services presents the most excessive regulatory burden. This assessment will duplicate information required for other provisions of the final rule, including Quality Assurance and Performance Improvement (QAPI) plans, compliance/ethics, emergency preparedness, and infrastructure maintenance plans. However, the information must be repackaged in a stand-alone facility assessment that will become obsolete as soon as it is completed.

    Because of the ever-changing nature of a nursing home’s operations and census, a facility would have to constantly update its facility assessment to present an accurate picture or otherwise risk citations and penalties. Constant updating of an assessment will require an outlay of effort and resources that far exceed the assessment’s worth and will necessarily take critical staff away from resident care and the day-to-day tasks that keep a facility operating safely and efficiently. To measure compliance against an annual regulatory review of such a plan, even with provisions for periodic updates by the provider, is counter-intuitive to assessment of the nursing home’s ability to manage and respond to the care and service needs of their residents on a day-to-day basis. Nursing homes must retain the flexibility necessary to respond to the variability of their residents’ ongoing functioning needs. Organizational decisions and operational approaches should not be specifically directed or managed by CMS or be subject to compliance determinations based on a single document review conducted on an annual basis.

    The quality of care and quality of life goals thought to be achieved through a facility assessment already are accounted for under the existing, highly detailed survey and enforcement system. The assessment requirement is excessively burdensome, costly and counterproductive.
     
  • Infection prevention and control:  Although infection control is an integral part of quality nursing home care, the Infection Prevention and Control Plan provisions of the new requirements of participation (page 26) are so strict in terms of required elements and specifications that it will be virtually impossible for a nursing home to tailor the plan to its particular needs, despite the fact that the infection control program is supposed to be based on a nursing home’s facility-wide assessment. Moreover, nursing homes will have to hire a staff member with specific credentials to serve as the Infection Prevention and Control Officer with primary responsibility for the development, implementation, oversight, operation, review and revision of the infection control plan, all without any increase in funding from government health care programs. Many LeadingAge nursing home members, particularly those in rural areas, have advised us that it will be both practically and financially impossible for them to find such professionals in their labor markets.
     
  • Abuse reporting: LeadingAge agrees that all alleged violations involving abuse, neglect, exploitation or mistreatment of nursing home residents, including injuries of unknown source and misappropriation of resident property, must be reported to state survey agencies. However, we strongly oppose the final rule’s requirement that any alleged violations must be reported immediately, but not later than two hours. The 2-hour time-frame is unduly restrictive and does not take into account the many actions a nursing home may have to take when possible abuse is found, including protection of residents and staff; notification to the nursing home’s administrator and medical director, the resident’s family, and police; facilitating police investigation; and potential transfer of the resident to a hospital for treatment. These essential actions in all likelihood would take far longer than the two hours the final rule allows for nursing homes to report alleged abuse to the state survey agency.
     
  • Discharge Notices: LeadingAge agrees with CMS on the need to reduce inappropriate involuntary discharges of residents from nursing homes. However, the final rule’s requirement that every non-resident-initiated transfer or discharge be reported to the state Long-Term Care Ombudsman creates an unnecessary burden on both providers and the ombudsman offices, both in terms of needless paperwork and an overload of information that would prevent the Ombudsman from focusing on true cases of involuntary transfers or discharges. The notice could cause delay in transfer/discharge and add confusion to an emergency situation or life threatening need for transfer or discharge. We have been informed by state ombudsman offices throughout the country that they do not want all the notices required under the final rule and cannot handle the amount of paperwork that would be funneled to them.
     
  • Quality Assurance and Performance Improvement (QAPI): LeadingAge has been a strong supporter and promoter of QAPI since its adoption under the Affordable Care Act. However, the QAPI provisions in the final rule far exceed the statutory language. The final rule requires a nursing home to give the state survey agency access to quality data, analysis and reports, information that should remain protected and privileged, so that nursing homes can fully embrace transparency without blame to hardwire a culture of high performance and quality. Each nursing home is unique and requires flexibility in order to have a higher functioning quality assurance and quality improvement program. The requirements in the final rule are rigid, inflexible, overly detailed and encompass the full range of care and services in a facility. A nursing home’s QAPI program should prioritize continuous quality improvement activities centered on resident outcomes and both quality of care and life, with flexibility to make necessary changes depending on outcomes and data.
     
  • Grievance Process: LeadingAge agrees that nursing home residents must be made aware of their rights, be able to voice grievances and be able to file written grievances. We also agree the process and responsibility for managing and responding to grievances must be timely, clear and consistent and well served through a designated facility policy and procedure.

    However, the final rule adds both unnecessary labor and financial burdens for nursing homes. The mandate of a designated “Grievance Official” with specific duties outlined in the final rule makes it nearly impossible for facilities to use existing staff for this function, which will force them to hire new staff to carry it out. Furthermore, nursing homes already are required to designate compliance officers, whose responsibilities could be duplicated by the grievance official. The final rule’s new requirements add nothing to the protections residents with grievances already receive under the existing survey and enforcement system. Also, the final rule requires nursing homes to maintain evidence related to grievances for at least 3 years, which may be financially and structurally unfeasible for many nursing homes. Extensive additional documentation and storage and maintenance of files will require both additional staff time and direct financial investments that will take valuable resources away from services for residents.
     
  • Staff training: As a practical matter, the final rule’s training requirements will require nursing homes to hire additional staff simply because of the number of topics that must be covered, the scope of the training on those topics and the time such training will take away from staff care of residents. The final rule allows nursing homes no real flexibility in how they train, given the expansion of who must be trained, on what topics they must be trained and how often they must be trained. As such, the training requirements are unduly prescriptive and burdensome.

Related Statute/Regulation:

Medicare and Medicaid Programs: Reform of Requirements for Long-Term Care Facilities, 81 Fed. Reg. 68688 (Oct. 4, 2106), the final Requirements of Participation rule

Proposed Solutions:

The final rule on nursing home requirements of participation was issued in haste toward the end of the Obama Administration. It would be most productive to delay the effective dates of Phases II and III until a determination can be made on achieving the goals of the regulatory overhaul in a less burdensome and more cost-effective manner.

Furthermore, nursing homes should be given a sufficient period of time after CMS issues guidance on the Phase II and Phase III requirements to work toward implementation. This will allow providers to incorporate CMS’ expectations into their plans for compliance rather than to guess about CMS’ expectations and have to go back and revise their policies, procedures, and operations after having been found out of compliance, with attendant penalties.

With regard to the specific issues discussed above, LeadingAge urges Congress to provide the following directives to CMS:

  • Eliminate the requirement for a facility assessment, since it will create an enormous burden on nursing homes, particularly small, rural facilities, without enhancing facility performance, regulatory oversight or the care and services provided to residents.
  • Nursing homes should have greater flexibility to design infection control programs that meet their individual needs based on existing policies and procedures, compliance history and other factors. Also, the final rule should be revised to allow for existing staff to fulfill the duties of an infection control officer, authorize the infection control officer to serve multiple nursing homes and permit tele-visits for facilities in rural areas as well as those areas experiencing workforce shortages.
  • Nursing homes should be allowed up to 24 hours to report instances of alleged abuse, neglect, mistreatment or exploitation of a resident to the state survey agency.
  • The requirement for transfer/discharge notices should be rewritten to focus on providing notice to the State Long-Term Care Ombudsman only in situations involving truly involuntary transfers or discharges.
  • The final rule’s QAPI requirements should be revised to enable nursing homes to focus on their most pressing compliance and quality challenges and prioritize continuous quality improvement activities centered on resident outcomes and both quality of care and life.
  • Flexibility should be returned to the grievance process to ensure residents’ rights to be heard without unneeded bureaucracy, additional staff and expense.
  • Nursing homes should be able to base any enhanced staff training on their compliance history in the areas specified by the final rule.