October 01, 2015

ABA urges greater protection in nursing homes

The ABA urged the Centers for Medicare & Medicaid Services (CMS) to modify language in recently proposed comprehensive regulations that would establish new requirements for long-term care facilities to ensure that they protect the rights of residents, improve their quality of care and quality of life, and ensure resident-centered care.

In comments submitted Sept. 30 to CMS, ABA Governmental Affairs Director Thomas M. Susman wrote that the proposed regulations represent a substantial step forward overall and commended CMS for including provisions that include new definitions of abuse, neglect and  exploitation and provisions to enhance oversight in long-term care facilities. The proposed regulations, according to the ABA, also strengthen a nationwide structure for training staff at long-term care facilities about elder abuse.

Susman, however, said the ABA recommends further revision in the following areas.

Definition of Resident Representative.  The ABA urges that the term “resident representative,” which implies the conventional legal basis for decision-making authority, be replaced with a term such as “resident enabler.” The new term would incorporate the concept of supported decision-making that is initiated or agreed to by the resident rather than transferring authority to someone else. The process, derived from principles in the ABA-supported U.N. Convention on the Rights of Persons with Disabilities, includes the involvement of trusted friends, family members and advocates.

Residents’ Right to Vote. The proposed regulations should expressly include the right to vote among the residents’ rights and require facilities to develop policies and procedures to support voting. The ideal model involves collaboration between election officials and nursing homes in a process referred to as “mobile polling,” in which election officials trained in assisting individuals with cognitive and other brain impairments bring the vote to residents and make assistance available.

Advance Care Planning. The proposed regulations need to incorporate, in addition to advanced directives, recognition of other components that are part of the lifelong process of advance care planning that change according to the stages of life and illness. These components include Physicians’ Orders for Life Sustaining Treatment (POLST), which are portable medical orders that seek to ensure that seriously ill or frail patients can choose their treatment and that their wishes are documented and will be honored in emergency situations.

Pre-Dispute Binding Arbitration. The proposed regulations set out conditions on any pre-dispute binding arbitration agreements between the facility and its residents, but the ABA recommends that the proposed regulations should expressly prohibit such agreements while permitting voluntary post-dispute arbitration agreements.

Psychotropic Drugs. The ABA is concerned that the proposed regulations stretch the definition of psychotropic drugs so far that under-treatment of pain and other distressing symptoms would result. The association recommends that CMS not include antidepressants and opioid analgesics on the list and instead take steps to develop palliative care quality indicators focused on the care received with resident and family priorities.

CMS will be evaluating the comments to develop a final rule, which the agency stated is necessary to “reflect the substantial advances that have been made over the past several years in the theory and practice of service delivery and safety” and, in addition, to “achieve broad-based improvement in the quality of health care furnished through federal programs, and in patient safety, while at the same time reducing procedural burdens on providers.”

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