CLIENT ADVISORY: New Conditions of Participation for Nursing Facilities Require Changes to Admission Agreements

The new Conditions of Participation published by the Centers for Medicare and Medicaid Services (CMS) on October 4, 2016 require nursing facility providers to make a number of changes to their policies, procedures, agreements and operations in advance of the Phase 1 implementation date of November 28, 2016. Compliance efforts should be ongoing to adjust facility policies and procedures and to train staff in how to implement the changes internally. Resources are available for nursing facilities that could use assistance in drafting new policies and procedures in compliance with the new rules, including sample policies developed by Chiles Healthcare Consulting, LLC.

While each nursing facility implements the sweeping changes incorporated into the new Conditions of Participation, admission agreements should receive special focus. For surveyors also becoming familiar with the new rules, statements made in black and white in a written admission agreement are relatively simple to compare to the new requirements in a search for survey deficiencies. Thus, facility staff need to review and update the terms of service communicated in admission agreements between nursing facilities and new residents to match the new Conditions of Participation.

Nursing facilities should act now to ensure that the admission agreements they use beginning on November 28, 2016 and beyond are compliant with the Phase 1 changes. The following is a checklist of likely modifications to admission agreements; facilities need to make these modifications to ensure compliance with Phase 1 changes in the Conditions of Participation:

• Incorporate new definition of “resident representative” and specify the scope of authority for anyone signing an agreement on behalf of a resident or in addition to a resident (483.5)
• Update the Resident’s Rights attachment to the agreement to match new standards (483.10)
• Adjust any language regarding the resident’s attending physician to specify that the resident has a choice to select a physician if they meet regulatory requirements and are willing to serve (483.10(d))
• Adjust billing language to specify that for Medicare/Medicaid residents, there is no extra charge for any item or service “required to achieve the goals stated in the resident’s care plan” (483.10(f))
• Ensure treatment of resident deposited funds is consistent with new requirements (483.10(f))
• Be prepared to remove pre-dispute arbitration clauses depending on pending court action (with current federal district court injunction, no need to remove yet) (483.15, .70)
• Disclose any “special characteristics” or “service limitations” upon admission (483.15)
• Disclose the physical configuration of any nursing facility that is defined as a “composite distinct part” (483.15)
• Remove any language requiring a waiver of Medicare/Medicaid benefits (483.15)
• Remove any language waiving liability for loss of resident personal property. Depending on pending guidance, consider limiting value of property brought into the facility or adopt waivers for losses for which the facility is not responsible (483.15)
• Set up a process at admission to allow residents to apply for reimbursement of dental services as an incurred medical expense (MAP-122 adjustment) (483.55)
• Communicate the contents of a new required policy regarding the use and storage of food brought to residents from outside the facility (483.60)
• Communicate additional newly required policies relevant to residents and their families, including the facility admission policy (483.15), resident/family involvement in care planning (483.10), right to receive advance information about care, type of professional delivering care, and risks/benefits (483.10), right to request treatment and/or discontinue treatment (483.10), rights to share a room with a roommate of choice (483.10), right to participate in activities (483.10), visitation rights (483.10), notice of meetings (483.10), grievance policy (483.10), etc.

Nursing facilities should revise their admission agreements now to implement the above changes where current agreements conflict with the new rules. CMS will be publishing future guidance on many of the above issues. Facilities should anticipate making additional modifications to comply with applicable guidance.

Should you or your organization have any questions regarding implementation of the new Conditions of Participation, please contact Peter Mellette or Harrison Gibbs at Mellette PC 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.