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The Centers for Medicare & Medicaid Services (CMS) recently released a proposed rule that would change some regulatory requirements for long-term care (LTC) facilities and the survey process, including the anticipated compliance and ethics program requirements.  CMS states that the proposed rule is intended to simplify, eliminate, or reduce overly burdensome regulations to allow LTC facilities to focus on quality of care.  The proposed rule suggests changes to conditions of participation, including those related to resident’s rights, admission, transfer and discharge rights, quality of care, nursing services, behavioral health, pharmacy services, food and nutrition, administration, quality assurance and performance improvement (QAPI) programs, infection control, the compliance and ethics program, and the physical environment.

CMS proposes the following key changes:

  • Amending the requirement that LTC facilities keep a resident informed of all physicians involved in the resident’s care, including the physicians’ specialties and contact information, and only require the facilities to provide information on the resident’s primary care at the time of admission, during any change of such information, or upon the resident’s request.
  • More distinctly defining what constitutes a grievance that must be investigated and resolved through the official grievance process established under the October 2016 final rule. A reported issue that would rise to the level of a grievance includes issues related to “care and treatment which have been furnished as well as those which have not been furnished; the behavior of staff and of other residents; and other concerns regarding their LTC facility stay that differ from general feedback provided by the resident or their resident representatives.”
  • Removing certain requirements related to the grievance official’s defined duties and required documentation for grievance investigations.
  • Revising the requirement that LTC facilities send transfers or discharge notices to the state LTC Ombudsman and only require notices to be sent when the transfer or discharge is a facility-initiated involuntary transfer or discharge. The proposed rule defines a facility initiated involuntary transfer or discharge as, “a transfer or discharge that the resident objects to, did not originate through a resident’s verbal or written request, and/or is not in alignment with the resident’s stated goals for care and preferences.”
  • Clarifying the requirements related to the attempt to use appropriate alternatives before installing sides or bed rails.
  • Reducing the retention timeframe for nurse staffing data from 18 months to 15 months.
  • Eliminating the requirement that the attending physician or prescribing practitioner evaluate a resident to prescribe anti-psychotics for longer than the 14-day limit of the initial prescription. The amendment would treat anti-psychotics the same as other psychotropic drugs with regards to the procedures for prescribing them for more than 14 days.
  • Amending the credentialing and education requirements for directors of food and nutrition services to allow for more flexibility for those who have already been working in the position for 2 or more years.
  • Reducing and modifying some of the requirements for facility-wide assessments, including minimizing the required frequency from once a year to once every two years.
  • Modifying the regulations for QAPI programs to create more flexibility in reporting, monitoring, remediation, and data system requirements.
  • Considering allowing LTC facilities to employ part-time infection preventionists (IP) instead of requiring full-time IPs, when appropriate, given the time and resources required to run the facility’s infection prevention and control program.
  • Amending the compliance and ethics program regulatory requirements, including eliminating: 1) the requirement that LTC facilities with five or more facilities have a designated compliance officer and compliance liaisons; 2) the annual review requirement, and only requiring reviews when the compliance and ethics program identifies necessary changes; 3) the requirement for a compliance and ethics program contact person; and 4) the prescriptive language regarding oversight of the compliance and ethics program by the facility’s Chief Executive Officer, Board of Directors, or directors of major divisions.
  • Revising requirements for the Life Safety Code to allow some facilities to continue to follow the 2001 Fire Safety Equivalency System to meet safety requirements.

CMS also proposes changes to survey, certification, and enforcement procedures related to informal dispute resolution (IDR) and waiver of hearing reduction in penalty amounts.  CMS specifies that the IDR process should be completed within 60 days from when the LTC facility requests it.  CMS would also provide states with more specific instructions on not including survey results in the national reporting system until after the IDR process is completed.  Additionally, the agency would clarify the knowledge requirements for an Independent IDR reviewer for umbrella state agencies, and the Independent IDR results must be provided to a facility through CMS or the state in writing.  The proposed rule also suggests changing the waiver process for waiving hearing rights in exchange for a 35 percent reduction in civil monetary penalties, from an express waiver process to a constructive waiver process.

The comment period for the proposed rule will close on September 16, 2019.

The proposed rule is available at:

https://www.govinfo.gov/content/pkg/FR-2019-07-18/pdf/2019-14946.pdf

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