Doctor concerned with health care law

Breaking news and expert analysis on legal and compliance issues

[Back To Home][Back To Archives]

From Health Law Daily, July 16, 2015

CMS proposes overhaul to protect nursing home residents

By Anthony H. Nguyen, J.D.

For the first time since 1991, CMS proposed major changes that would rewrite long-term care conditions of participation to improve the care and safety of the nearly 1.5 million residents in the more than 15,000 long-term care facilities or nursing homes that participate in the Medicare and Medicaid programs. In the advance release of a Proposed rule, if adopted, unnecessary hospital readmissions and infections would be reduced, quality care increased, and safety measures strengthened for the more than one million residents in these facilities (Proposed rule, 80 FR 42168, July 16, 2015).

Background. The last time the long-term care conditions of participation were comprehensively updated was 1991. The number of Medicare beneficiaries who accessed care in a long-term care facility increased from 636,000 (or 19 per 1,000 enrollees) in 1989 to 1,839,000 (or 52 per 1,000 enrollees) in 2010, not including managed care enrollees. Many of HHS’ proposals would add improvements for nursing homes, including protections required by the Patient Protection and Affordable Care Act (ACA) (P.L. 111-148).

Section 6102 of the ACA established a new Section 1128I of the Social Security Act. In general, Soc. Sec. Act Sec. 1128I(b) requires long-term care facilities to have in operation an effective compliance and ethics program that is effective in preventing and detecting criminal, civil, and administrative violations and in promoting quality of care. Moreover, Sec. 1128I required CMS to establish and implement Quality Assurance and Performance Improvement (QAPI) program requirements for facilities, including multi-unit chains of facilities. Under this requirement, CMS must establish and implement standards relating to QAPI and provide technical assistance to facilities on the development of best practices in order to meet these standards. A facility must submit to CMS a plan for the facility to meet such standards and implement the best practices, including how to coordinate the implementation of a plan with quality assessment and assurance (QAA) activities already required under Soc. Sec. Act Secs. 1819(b)(1)(B) and 1919(b)(1)(B).

Expanded training and centered care. Under the Proposed rule, long-term care facility staff would be trained on the proper care for residents with dementia and in preventing elder abuse as required by ACA Sec. 6121. The long-term care facility staff would be required to demonstrate correct skill sets and competencies to provide person-centered care to residents, taking into consideration residents’ goals of care and preferences.

Moreover, long-term care facilities would be required to 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. The Proposed rule would require these facilities to develop 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.

Dieticians. Dieticians and therapy providers would have the authority to write orders in their areas of expertise when a physician delegates the responsibility and state licensing laws allow. The Proposed rule would clarify the definition of a “qualified dietitian” as one who is registered by the Commission on Dietetic Registration of the Academy of Nutrition and Dietetics or who meets state licensure or certification requirements. For dietitians hired or contracted with prior to the effective date of the Proposed rule, these individuals would be allowed up to 5 years to meet the new requirements.

Prescription drug review. In addition, CMS proposed to add the requirement that a pharmacist review a resident’s medical chart at least every 6 months when the resident is new to the facility, a prior resident returns or is transferred from a hospital or other facility, and during each monthly drug regimen review when the resident has been prescribed or is taking a psychotropic drug, an antibiotic or any drug the QAA Committee has requested be included in the pharmacist’s monthly drug review.

The pharmacist would be required to document in a written report any irregularities noted during the drug regimen review that lists at a minimum, the resident’s name, the relevant drug, and the irregularity identified, to be sent to the attending physician and the facility’s medical director and director of nursing. The attending physician would also document in the resident’s medical record that he or she has reviewed the identified irregularity and what, if any, action they have taken to address it. If there is to be no change in the medication, the attending physician should document his or her rationale in the resident’s medical record.

Infection control. The Proposed rule would require long-term care facilities to update their infection prevention and control program, including appointment of a prevention and control officer. In addition, the long-term care facilities would need to implement an antibiotic stewardship program that included antibiotic use protocols and a system to monitor antibiotic use.

CMS noted in the Proposed rule that although estimates vary widely, there were between 1.6 and 3.8 million healthcare associated infections (HAI) in nursing homes every year. Annually, CMS pointed out studies that these infections resulted in an estimated 150,000 hospitalizations, 388,000 deaths, and between $673 million and $2 billion dollars in additional healthcare costs.

Under the Proposed rule, CMS would require the facility to have written standards, policies, and procedures for its Infection Prevention and Control Program, including but not limited to, a system of surveillance designed to identify possible communicable disease or infections before it can spread to other persons in the facility; reporting requirements for possible incidents of communicable disease or infections; standard and transmission-based precautions to be followed to prevent spread of infections; circumstances in which generally, isolation should be used for a resident; the circumstances under which the facility must prohibit employees with a communicable disease or infected skin lesions from direct contact with residents or their food, if the contact is likely to transmit the disease; and the hand hygiene procedures to be followed by all staff as indicated by accepted professional practice.

Other highlights. CMS’ proposal for long-term care facilities also included:

  • improving care planning, including discharge planning for all residents with involvement of the long-term care facility’s interdisciplinary team and consideration of the caregiver’s capacity, allowing residents to have the necessary information for follow-up;

  • requiring long-term care facilities provide greater food choices for residents; and

  • strengthening the rights for long-term care facility residents, including limits on when and how binding arbitration agreements may be used.

MainStory: TopStory LTCHNews CMSNews CoPNews SNFNews QualityNews CMSNews

Health Law Daily

Introducing Wolters Kluwer Health Law Daily — a daily reporting service created by attorneys, for attorneys — providing same-day coverage of breaking news, court decisions, legislation, and regulatory activity.


A complete daily report of the news that affects your world

  • View full summaries of federal and state court decisions.
  • Access full text of legislative and regulatory developments.
  • Customize your daily email by topic and/or jurisdiction.
  • Search archives for stories of interest.

Not just news — the right news

  • Get expert analysis written by subject matter specialists—created by attorneys for attorneys.
  • Track law firms and organizations in the headlines with our new “Who’s in the News” feature.
  • Promote your firm with our new reprint policy.

24/7 access for a 24/7 world

  • Forward information with special copyright permissions, encouraging collaboration between counsel and colleagues.
  • Save time with mobile apps for your BlackBerry, iPhone, iPad, Android, or Kindle.
  • Access all links from any mobile device without being prompted for user name and password.