Client Alert: Comments Due By September 14th on Sweeping CMS Proposed Rule That Would Comprehensively Revise Medicare and Medicaid Nursing Facility Conditions of Participation

On July 16, 2015, the Centers for Medicare and Medicaid Services (CMS) published a sweeping Proposed Rule that would comprehensively revise Medicare and Medicaid participation requirements for nursing facilities for the first time since 1991. Mellette PC’s introduction to the Proposed Rule, published by the Virginia Health Care Association, is available here.

In addition to housekeeping changes to keep pace with existing facility and surveyor practices, the Proposed Rule includes a number of provisions that could significantly change many areas of current facility practices if finalized. The proposed changes are so significant that CMS estimates (likely conservatively) that the Proposed Rule would result in a cost of over $46,000 in the first year and over $40,000 in the second year.

While many industry trade groups and patient advocate organizations are expected to submit comments on the proposed rule, individual providers and organizations have also been encouraged to comment. Comments on the Proposed Rule must be received by 5:00 p.m. on September 14, 2015, to ensure consideration. Below is a small sample of new requirements in the Proposed Rule that may be deserving of comments:

• Requirements that an interim care plan be developed within 48 hours of admission and that CNA and other additional staff be included in care planning meetings.
• Several new obligations that will likely require additional administrative staff, including staff assigned to monitor a new “Infection Prevention and Control Program,” manage complaints, and oversee a facility compliance program.
• A new requirement to conduct a detailed and comprehensive written “facility assessment” on at least an annual basis.
• The imposition of new staffing standards as identified through the facility assessment, new objective staffing standards, or both.
• Strict PRN limits, medication regimen review requirements, and other restrictions on the use of an expanded class of psychotropic medications to include antipsychotics, antidepressants, opioid analgesics, hypnotics, anxiolytics, and similar medications.
• A requirement for an on-site clinical pre-discharge review by a physician or physician extender prior to non-emergent and unscheduled transfers to a hospital.
• Codification of current practice that residents with any payor source may appeal a discharge decision and must be permitted to remain in a facility while an appeal is pending, without any additional time limits on appeals or reimbursement for unpaid stays.
• Requirement that any arbitration agreements be voluntary and not be integrated into admission agreements.

Many comments will likely and understandably focus on the many administrative and financial burdens the changes to the Proposed Rule would impose on nursing facilities. Providers wishing to have the most impact on CMS’ decision making process, however, may wish to focus on specific aspects of the Proposed Rule that can be addressed directly with data or examples from the experience of current providers. Indeed, providers may be able to tailor comments to address CMS’ requests for specific types of information. For example, CMS has requested comment on whether objective nursing standards for nursing facilities would be appropriate as compared to a facility and resident population-focused approach.

Many regulatory decisions are made based on the consideration of only a few public comments, so existing organizations should be aware that specific, focused comments could play an important role as CMS considers new standards and the burdens those standards will place on nursing facilities. Should you or your organization need any assistance in understanding the provisions of the Proposed Rule or drafting effective comments in response, please contact Peter Mellette (peter@mellettepc.com) at (757) 259-9200.

This Client Advisory is for general educational purposes only. It is not intended to provide legal advice specific to any situation you may have. Individuals desiring legal advice should consult legal counsel for up-to-date and fact-specific advice.