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August 01, 2017

What’s Next for Long-Term Care Facilities?

by Eric Carlson & Toby Edelman

(The pdf for the issue in which this article appears is available for download: Bifocal, Vol. 38, Issue 6.)

Centers for Medicare and Medicaid Services (CMS) released new nursing facility regulations in September 2016. Most of the regulations became effective in Novem­ber of 2016, although a limited number of the regulations will not become effective until November 2017 or Novem­ber 2019.

    New survey procedures and surveyor guidelines will become effective in November 2017.

    The new regulations offer some improved protections to consumers by placing a greater emphasis on person-centered care and attempting to give residents greater con­trol over their care, schedules, and activities. Under the new regulations, a baseline care plan must be completed within 48 hours after admission, and the resident has increased choice over who participates with him or her on the inter­disciplinary team that subsequently develops the compre­hensive care plan. This care plan generally must include a discharge plan, indicating an increased emphasis on transi­tioning residents from nursing facilities to homes or other settings whenever possible.

    Protections against improper transfer/discharge are somewhat improved, as are the rules that apply to transfers within a facility. On the other hand, staffing standards are not appreciably better, and the regulations failed to take a strong position against use of psychotropic medications. However, one consumer-friendly provision is on the chop­ping block. CMS now proposes to eliminate the regulations which prohibit a nursing facility from obtaining agreement to arbitration agreement at the time of admission. Despite beginning to issue revisions to the guidelines to implement the revised standards of care, CMS has delayed enforcement of some of the new guidance regulations. CMS announced plans to combine the two survey processes currently in use—the traditional survey and the Quality Indicator Survey—into a single survey process for all states to use, but no details are publicly available.

    With even less prior public announcement, CMS has begun to weaken enforcement of the Nursing Home Re­form Law and regulations. A new Civil Money Penalty (CMP) Analytic Tool—which Regional Offices use in determining amounts of civil money penalties—makes per instance CMPs the default in many more situations of facilities’ noncompliance. Per instance CMPs are generally considerably lower than per day CMPs.

    For arguably the first time, federal regulations are ad­dressing the standard of care in assisted living facilities. In 2014, CMS released regulations to promote a non-institu­tional environment in settings in which Medicaid home and community-based services (HCBS) are provided. States are currently developing transition plans to come into compli­ance with those regulations. Transition plans must be ap­proved by CMS by March 2019, with complete compliance required by March 2022.

    Under the regulations, both residential and non-residential HCBS settings must provide service recipients with access to the community outside the setting, and offer choice regarding services, service providers, and other as­pects of the service recipient’s life. A subset of the regula­tions applies only to residential HCBS settings—assisted living facilities, for example. One provision requires that each resident have protections from eviction that are at least equivalent to the protections provided under the state’s landlord-tenant law. If landlord-tenant law does not apply, the state must ensure that equivalent protections are estab­lished by a written agreement between the resident and the setting. Other residential provisions require lockable doors, accessible units, and around-the-clock access to food.

    Details on these changes will be covered in a work­shop at the 2017 National Aging and Law Conference on day 2, October 26, from 2:45-4 p.m. in room Inspiration A.

Eric Carlson is a Directing Attorney at Justice in Aging.

Toby S. Edelman is a Senior Policy Attorney with the Center for Medicare Advocacy.

by Eric Carlson & Toby Edelman