LeadingAge Issues Statement on Federal Nursing Home Requirements

The following statement is from LeadingAge, a trusted voice for aging in the United States, which CHHSM is a participating member.

Washington, D.C. — The Centers for Medicare and Medicaid Services (CMS) released final rules revising the nursing home requirements of participation, which were to be published October 4, 2016. This new rules represents the most significant changes to the delivery of nursing home care since OBRA ‘87.

LeadingAge is pleased that CMS has recognized the enormous complexity of this rule and allowed for a phase-in for some of the components. We are also encouraged by:

• The continuing focus on more person-centered approaches, including many elements of resident rights and quality of care.
• The recognition of potential unintended consequences of requiring in-person evaluation by an attending clinician prior to non-emergency transfers; as a result, CMS did not include that proposal in the final rule.
• The 48-hour limit on as needed orders for psychoactive medications was changed from the proposed rule language, and that CMS recognized that the 48-hour limit would potentially lead to disrupted care and resident harm.

However, after an initial read-through, there are a few sections of the rule that we believe could be detrimental to our nursing homes members.

“One of the most significant elements in the final rule is the new requirement for facility-wide assessment,” said Dr. Cheryl Phillips, senior vice president of public policy and health services. “While we support the concept of aligning staff levels and expertise with the needs of the residents, rather than looking at fixed staffing levels, we remain concerned that we have yet to fully understand what this assessment will include and how CMS will use it for assessing quality of care.”

LeadingAge is also concerned with the amount and degree of staff training that will be needed to implement the new requirements successfully. The impact on an already stretched and resource-strapped workforce will be further challenged unless both Medicare and Medicaid include the necessary staff resources into payments and population health shared savings models.

With regards to arbitration, LeadingAge has always supported arbitration agreements that are properly structured and allow parties to have a speedy and cost-effective alternative to traditional litigation. We are therefore disappointed that CMS has exceeded its authority and banned all pre-dispute arbitration agreements. Arbitration agreements should be enforced if they were executed separately from the admission agreement, were not a condition of admissions, and allowed the resident to rescind the agreement within a reasonable time frame.

Over the next several days LeadingAge will be providing in-depth analysis of the entire rule. We also recognize that much of the needed details will come out of the accompanying guidance language, and we look forward to working with CMS as such guidance is developed.

LeadingAge plans to hold a webinar on October 13 to discuss the final rule and its implications for LeadingAge member nursing homes.