Proposed Federal Rules Contain Major Changes Affecting Long-Term Care Facilities

After nearly 24 years without any major revisions, last week the Centers for Medicare and Medicaid Services (CMS) proposed major revisions to the Medicare-Medicaid Conditions of Participation governing long-term care facilities to reflect advances made to delivering long-term care over the last several years.  Many of the proposals are designed to implement requirements of the Patient Protection and Affordable Care Act of 2010, as amended by the Health Care and Education Reconciliation Act of 2010.  If the proposed revisions are adopted, long-term care facilities will need to revise a long list of policies and procedures and develop and implement a number of new policies and procedures and programs.  CMS estimates that the total projected cost for long-term care facilities to comply with the proposed revisions will be $729,495,614 in the first year and $638,386,760 in the second year.

• Open visitation to allow residents to have visitors of their choice at the time of their choice, subject to any clinically necessary or reasonable restriction or limitation or any safety restriction or limitation.
• Alternative suitable and nourishing meals and snacks for residents who want to eat at non-traditional times or outside of scheduled meal times.
• The right of a resident to share a room with his/her roommate of choice if the residents live in the same facility, consent to the arrangement, and the facility is able to reasonably accommodate the arrangement.
• Comprehensive Person-Centered Care Planning with a baseline care plan established within 48 hours of a resident’s admission to the facility.
• The provision of behavioral health services to residents with mental and psychosocial illnesses or substance abuse disorders, in accordance with their comprehensive assessments and plans of care, with appropriate staffing to provide the services, including social workers.
• The establishment of a facility policy regarding the use and storage of foods brought to residents by family and other visitors.
• The development, implementation, and maintenance of a Quality Assurance and Performance Improvement Program that focuses on systems of care, outcomes of care, and quality of life.
• The establishment of an Infection Prevention and Control Program to prevent, identify, report, investigate, and control infections and communicable diseases for residents, staff, volunteers, visitors, and other individuals providing services under an arrangement, and the designation of an Infection Prevention and Control Officer to serve on the facility’s Quality Assessment and Assurance Committee.
• The establishment of policies regarding smoking which address tobacco cessation, smoking areas, and safety, consistent with state and federal law.
• The development, implementation, and maintenance of a Compliance and Ethics Program with policies and procedures to reduce criminal, civil, and administrative violations.
• An annual facility wide assessment of a number of factors such as, size, location, and number of residents; resident population, including types of diseases, conditions, and overall acuity; competencies and knowledge of employed and contracted staff, managers, and volunteers; contracts, memoranda of understanding, and other agreements with third parties to provide services or equipment during normal operations and emergencies.
• Conditions that must be met before a facility enters into a binding arbitration agreement with a resident and provisions which must be included in a binding arbitration agreement, including but not limited to, explaining the agreement to the resident, not making admission to the facility contingent on signing the agreement, and not prohibiting or discouraging a resident from communicating with federal, state, or local health care or health-related officials.
• New health and safety standards applicable to facilities that provide outpatient rehabilitative services.

• Written policies and procedures to prohibit and prevent abuse, neglect, and mistreatment of residents or misappropriation of their property or exploitation.
• A prohibition on hiring an individual who has had disciplinary action taken against his/her professional license by a state licensing authority due to a finding of abuse, neglect, or mistreatment of a resident or misappropriation of a resident’s property.
• Expansion of the Interdisciplinary Care Team’s composition to include a nurse’s aide, a member of food and nutrition services, and a social worker.
• A written explanation if participation of a resident or the resident’s representative on the Interdisciplinary Care Team meetings is not practicable.
• Upon a resident’s transfer or discharge, documentation of the history of the present illness, the reason for the transfer or discharge, and the past medical/surgical history.
• An in-person evaluation by a physician, physician assistant, nurse practitioner, or clinical nurse specialist before an unscheduled transfer of a resident, except in an emergency.
• Accounting for quality, resource use, other measures, treatment preferences, and goals of care in discharge planning.
• A summary of arrangements for follow-up care and post-discharge medical and non-medical services in the resident’s discharge plan.
• Physician delegation of dietary orders to dietitians and therapy orders to therapists if  consistent with their scope of practice under state law.
• Pharmacist review of a resident’s medical chart at least every 6 months, when a resident is new to the facility, when a prior resident returns to or is transferred to the facility, and during each monthly drug regimen review if a resident is on a psychotropic drug, antibiotic, or any other drug the Quality Assessment and Assurance Committee has requested be included in the monthly drug review.
• Pharmacist documentation of any irregularities identified during the drug regimen review  in a written report provided to the attending physician, facility medical director, and director of nursing.  Attending physician documentation in the resident’s medical record that he/she has reviewed the identified irregularity, and what action, if any, has been taken to address it.
• Restrictions on the administration of psychotropic drugs, including but not limited to, limiting PRN (as needed) orders to 48 hours and refraining from renewals unless a resident’s physician reviews the need for the medication prior to the renewal and documents the rationale for the renewal in the resident’s clinical record.
• The implementation of training programs on communication, resident rights and facility requirements, abuse, neglect, and exploitation, Quality Assurance and Performance Improvement and Infection Control, Compliance and Ethics, in-service training for nurse aides on dementia management and resident abuse prevention, and behavioral health training for the entire staff.

Comments on the proposed rule are due by 5 p.m. on September 14, 2015.

If you have any questions concerning the proposed revisions to the Medicare-Medicaid Conditions of Participation governing long-term care facilities or would like assistance in submitting comments to CMS on the proposal, please contact Rochelle H. Zapol, a partner in Prince Lobel’s Health Care Practice and the author of this alert. You can reach Rochelle at 617 456 8036 or rzapol@PrinceLobel.com.