News & Insights

CMS Releases the First Comprehensive Overhaul of Nursing Home Conditions of Participation in Over 25 Years

By Ruder Ware Alumni
November 2, 2016

On October 4, 2016, the Center for Medicare and Medicaid Services (CMS) published a final rule to revise the requirements that Long-Term Care facilities must meet to participate in the Medicare and Medicaid programs. CMS states that the revisions to nursing home regulations are intended to reflect the substantial advances that have been made in the theory and practice of service delivery and safety. The revisions are part of efforts by CMS to achieve broad-based improvements in the quality of health care and in patient safety, while at the same time reducing procedural burdens on providers.  Whether the new regulations actually meet the last of these goals is open to question because the new regulations will require nursing homes to modify their policies, procedures and operations to meet these new Federal standards.

The final regulations are the first comprehensive review and update to nursing home conditions of participation since 1991.  CMS cites significant developments and innovations in resident care and quality assessment practices and changes in the clinical complexity of nursing home residents since the last major regulatory revisions as providing significant reason to revise the regulations.  What resulted is a comprehensive revision of both the content and organization to the regulations that govern nursing facilities.

Many of the revised requirements are aimed at aligning requirements with current clinical practice standards to improve resident safety along with the quality and effectiveness of care and services delivered to residents.

The following contain a high level description of some major provisions of the new regulations.  Each of these areas contain significant new requirements and/or revisions to past requirements.  For more detail please consult the full regulations.  Some of the general areas covered by the new regulations include the following:

1. Resident Abuse, Neglect and Exploitation.  Nursing facilities are now affirmatively required to report allegations of abusive conduct toward residents.  Facilities are also prohibited from employing individuals who have had disciplinary action taken against their professional license by a state licensure body as a result of a finding of abuse, neglect, mistreatment of residents or misappropriation of their property.  This standard will require nursing facilities to modify their employment screening requirements to assure that state past disciplinary records are obtained and reviewed prior to retaining staff.
2. Admission, Transfer, and Discharge Rights.  The new regulations require that transfer or discharge be documented in the patient’s medical chart and that specific information be shared with the provider or facility who receives the transferred resident.
3. Resident Assessments.  The new regulations clarify requirements for appropriate coordination of a resident’s assessment with the Preadmission Screening and Resident Review (PASARR) program under Medicaid.
4. Comprehensive Person-Centered Care Planning.  A new section is added to § 483.21 which requires nursing facilities to develop and implement a baseline care plan for each resident.  The baseline plan must be developed within 48 hours of a patient’s admission and must include the instructions needed to provide effective and person-centered care meeting professional standards of quality care. A nurse aide and a member of the food and nutrition services staff are required members of the interdisciplinary team that develops the comprehensive care plan.
5. Discharge Planning Process.  The new regulations require nursing facilities to develop and implement a discharge planning process that focuses on the resident’s discharge goals and prepares residents to be active partners in post-discharge care, in effective transitions, and in the reduction of factors leading to preventable re-admissions. Discharge planning requirements that were mandated under the Improving Medicare Post-Acute Care Transformation Act of 2014 (IMPACT Act) have also been integrated into discharge planning requirements.
6. Quality of Care Requirements.  The regulations reiterate general quality standards that are required to be followed by nursing facilities.  Facilities must assure that each resident receive and the facility provide the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being, consistent with the resident’s comprehensive assessment and plan of care.
7. Quality of Life.  Based on the comprehensive assessment of a resident, Facilities are required to ensure that residents receive treatment and care in accordance with professional standards of practice, the comprehensive person-centered care plan, and the residents’ choices.
8. Physician Services.  The new regulations permit attending physicians to delegate dietary orders to qualified dietitians or other clinically qualified nutrition professionals and therapy orders to therapists.
9. Nursing Services.  Competency requirements have been added for determining the sufficiency of nursing staff.  Nursing staffing requirements are based on a facility assessment and must include factors such as the number of residents, resident acuity, range of diagnoses, and the content of individual care plans.
10. Behavioral Health Services.  New requirements are added focusing on the need to provide the necessary behavioral health care and services to residents, in accordance with their comprehensive assessment and plan of care.  Changes are made to minimum educational requirements for a social worker.
11. Pharmacy Services.  Pharmacists are required to review a resident’s medical chart during each monthly drug regimen review. Existing requirements regarding ‘‘antipsychotic’’ drugs have been adjusted to refer to ‘‘psychotropic’’ drugs and define ‘‘psychotropic drug’’ to include drugs that affect brain activities associated with mental processes and behavior. Several provisions have been added that are intended to reduce or eliminate the need for psychotropic drugs, if not clinically contraindicated.
12. Dental Services.  Skilled nursing facilities and nursing facilities are prohibited from charging Medicare residents for the loss or damage of dentures that is determined to be the responsibility of the facility.  Facilities are required to implement policies that detail when the loss or damage of dentures is the facility’s responsibility. Nursing facilities are also required to assist residents who are eligible to apply for reimbursement of dental services under the Medicaid state plan. Except in extraordinary circumstances, a referral for lost or damaged dentures must be made within 3 business days.
13. Food and Nutrition Services.  Facilities are required to provide residents with a nourishing, palatable, well-balanced diet that meets their daily nutritional and special dietary needs.  Preferences of each resident must be taken into consideration. Facilities are required to employ sufficient staff with the appropriate competencies and skills sets to carry out the functions of dietary services. This includes the requirements that a director of food and nutrition services be designated.
14. Facility-Wide Assessment Requirement.  Facilities are required to conduct, document, and annually review a facility-wide assessment to determine what resources are necessary to care for residents competently during both day-to-day operations and emergencies. Facilities are required to address in the facility assessment the facility’s resident population (that is, number of residents, overall types of care and staff competencies required by the residents, and cultural aspects), resources (for example, equipment, and overall personnel), and a facility-based and community-based risk assessment.
15. Binding Arbitration Agreements. Facilities are prohibited from entering into binding arbitration with a resident or their representative until after a dispute arises between the parties. This requirement essentially prohibits the use of pre-dispute arbitration requirements.
16. Quality Assurance and Performance Improvement (QAPI).  All LTC facilities are required to develop, implement, and maintain an effective comprehensive, data-driven QAPI program that focuses on systems of care, outcomes of care and quality of life.
17. Infection Control.  Facilities are required to develop an Infection Prevention and Control Program (IPCP) that includes an Antibiotic Stewardship Program and designate at least one Infection Preventionist (IP).
18. Compliance and Ethics Program.  Nursing facilities are required to have in effect a compliance and ethics program that has established written compliance and ethics standards, policies and procedures that are capable of reducing the prospect of criminal, civil, and administrative violations in accordance with section 1128I(b) of the Act.  These provisions implement the requirement under the Affordable Care Act which required CMS to develop the requirements for nursing home compliance programs.
19. Physical Environment.   Facilities that are constructed, re-constructed, or newly certified after the effective date of this regulation may accommodate no more than two residents in a bedroom and contain a bathroom equipped with at least a commode and sink in each room.
20. Training Requirements.  New provisions are added that define what constitutes an effective training program for all new and existing staff, individuals providing services under a contractual arrangement, and volunteers, consistent with their expected roles.

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