BREAKING NEWS: CMS Proposed and Final Rules Announced for LTC

Mary Madison, RN, RAC-CT, CDP
Clinical Consultant – Briggs Healthcare

Yesterday, July 16, 2019, CMS provided notification of 2 rules that will impact LTC facilities: one final and one proposed.  Let’s look at the proposed rule first – CMS-3347-P: Medicare and Medicaid Programs; Requirements for Long-Term Care Facilities: Regulatory Provisions to Promote Efficiency, and Transparency.

“The proposed rule would remove requirements for participation identified as unnecessary, obsolete, or excessively burdensome on long-term care (LTC) facilities…CMS expects the provisions in the rule, if finalized, to achieve $616 million in savings annually for these facilities…This would be achieved by the elimination or reduction in the hours and resources that clinicians and providers spend on obsolete and redundant requirements that could impede or divert resources away from the provision of high-quality resident care.  Many of the proposed provisions would simplify and/or streamline the Medicare health and safety standards long-term care facilities must meet in order to serve their residents.  Importantly, in identifying opportunities for reducing burden, CMS would maintain resident health and safety standards.”

This proposed rule would, among other provisions (I have highlighted the Phase 3 RoP topics provided on the CMS Fact Sheet in red font):

  • Reduce the frequency that LTC facilities are required to conduct a facility assessment.
  • Allow LTC facilities the flexibility to streamline their compliance and ethics programs.
  • Reduce the requirements for individuals responsible for the compliance and ethics program and reduce the frequency for the program’s review.
  • Increase flexibility by providing that those who have performed as the director of food and nutrition services for a minimum of two years by allowing them to continue doing so without obtaining additional certification. Newly hired directors of food and nutrition services or those with less than two years of experience would need to complete, at a minimum, a course in food safety and management.
  • Allow facilities greater flexibility in tailoring their Quality Assurance Program Improvement (QAPI) program to the specific needs of their individual facility by eliminating prescriptive requirements.
  • Update Informal Dispute Resolution (and independent process) by adding timeframes on process, and increased provider transparency.

Proposed provisions within the unpublished version available for preview include:

  • Changes to Resident Rights
    • Revising provision of providing residents with their primary care physician’s name and contact information upon admission, with any change, or upon a resident’s request.
    • Revisions to grievance policy requirements
    • Revise the requirement for facilities to send discharge notices to State LTC Ombudsman by applying this requirement to “facility-initiated involuntary transfers and discharges” only.
  • Quality of Care
    • Modify requirements to focus on the appropriate “use” of bed rails and eliminate references to the “installation” of bed rails.
  • Nursing Services
    • Reduce the timeframe that LTC facilities are required to retain posted daily nursing staffing data from 18 months to 15 months, or as required by state law.
  • Behavioral Health
    • Remove requirements that are duplicative of other LTC requirements in other sections of the regulation and improve clarity.
  • Pharmacy Services
    • Remove the existing requirement that PRN prescriptions for anti-psychotics cannot be renewed unless the attending physician or prescribing practitioner evaluates the resident for the appropriateness of that medication. This proposed revision would increase flexibility by allowing each facility to allow for PRN orders of all psychotropic medications 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 for the PRN order.
  • Food and Nutrition Services
    • Revise the required qualifications for a director of food and nutrition services to provide that those with several years of experience performing as the director of food and nutrition services in a facility could continue to do so. Propose that at a minimum an individual designated as the director of food and nutrition services would receive frequently scheduled consultations from a qualified dietitian or other clinically qualified nutrition professional; and would either have 2 or more years of experience in the position of a director of food and nutrition services, or have completed a minimum course of study in food safety that includes topics integral to managing dietary operations such as, but not limited to, foodborne illness, sanitation procedures, food purchasing/receiving, etc. This proposal would help to address concerns related to costs associated with training for existing staff and the potential need to hire new staff.
  • Administration
    • Propose to remove duplicative requirements and revise the requirement for the review of the facility assessment from annually to biennially.
  • QAPI
    • Propose to revise the requirement for facilities to implement a Quality Assurance and Performance Improvement program by removing prescriptive requirements to allow facilities greater flexibility in tailoring their QAPI program to the specific needs of their individual facility.
  • Infection Control
    • Propose to remove the requirement that the infection preventionist (IP) work at the facility “part-time” or have frequent contact with the infection prevention and control program (IPCP) staff at the facility…instead require that the facility must ensure that the IP has sufficient time at the facility to meet the objectives of its IPCP. (CMS would like comments from providers/stakeholders on this proposal.)
  • Compliance and Ethics Program
    • Proposed revisions include removing the requirements for a compliance officer and compliance liaisons and revising the requirement for reviewing the program from annually to biennially.
  • Physical Environment
    • Propose to allow older existing LTC facilities to continue to use the 2001 Fire Safety Equivalency System (FSES) mandatory values when determining compliance for containment, extinguishment, and people movement requirements.
    • Propose to revise the requirements that newly constructed, re-constructed, or newly certified facilities accommodate no more than two residents in a bedroom and equip each resident room with its own bathroom that has a commode and sink.
  • Informal and Independent Informal Dispute Resolution
    • Propose to revise the informal dispute resolution and independent informal dispute resolution processes to increase provider transparency by ensuring that administrative actions are processed timely, and that providers understand the outcomes of results.
  • CMPs
    • Propose to eliminate the requirement for facilities to actively waive their right to a hearing in writing and create in its place a constructive waiver process that would operate by default when CMS has not received a timely request for a hearing. The accompanying 35 percent penalty reduction would remain.
  • Phase 3 Implementation of Overlapping Regulatory Provisions (Proposed one-year delay of implementation of some provisions)
    • Of the Phase 3 provisions, this regulation proposes revisions that, if finalized, would have an impact on provisions that fall into three primary areas— (1) designation and training of the infection preventionist (§483.80), QAPI (§483.75), and compliance and ethics program (§483.85). We propose to delay implementation of some these Phase 3 provisions until 1 year following the effective date of this regulation. We do not propose to delay those requirements related to the infection preventionist at §483.80(b)(1) through (4), (c) and §483.75(g)(1)(iv). This would avoid unnecessary work, confusion and burden associated with implementing provisions, which may then change in a final rule shortly thereafter.

Providers and stakeholders have until 5pm (Easter Time) on September 16, 2019 to submit comments on this proposed rule – Federal Register publication on July 18, 2019.  Until tomorrow, this unpublished PDF version is available for review (110 pages).   After that September date, CMS will review received comments and move to finalize this rule.

I’ve provided a thumbnail of what is in this extremely significant proposed rule.  Please take the time to review it with your team and provide comments to CMS as the final rule will definitely impact your facility!

The Medicare and Medicaid Programs: Revision of Requirements for Long Term Care Facilities: Arbitration Agreements – Federal Register final rule will be published on July 18, 2019.  The unpublished PDF preview (75 pages) repeals the prohibition on the use of pre-dispute, binding arbitration agreements and strengthens the “transparency of arbitration agreements and arbitration in LTC facilities. This final rule supports residents’ rights to make informed choices about important aspects of their health care.”

These regulations are effective 60 days after the date of publication in the Federal Register.

A thumbnail of this final rule can be found in the CMS Fact Sheet.