RESIDENTS’ RIGHTS AND PROTECTIONS ROLLED BACK IN CMS RULES

Strong, resident focused regulatory standards are critical to addressing and preventing poor care.  The July 18, 2019 issuance by the Centers for Medicare and Medicaid Services (CMS) proposing rollbacks to the revised nursing home rules published in 2016 and final rules allowing pre-dispute arbitration are steps in the wrong direction.

Proposed Rules: Nursing Facility Requirements

CMS states that the goal of the proposed nursing facility rules (81 Fed. Reg. 34737) is to increase provider flexibility and reduce excessively burdensome regulations.  The agency believes its proposal balances resident safety and quality of care, with regulatory “relief” for facilities.  From Consumer Voice’s initial review, however, reduced standards for resident safety, quality care, and resident’s rights are the price CMS expects residents to pay for less accountability and transparency.

Examples of provisions that CMS is proposing to roll back in the nursing facility requirements include:

• Reducing the frequency of the Facility Assessment, which is used to determine the resources, such as staff, needed to competently care for its residents, from annually to every 2 years.
• Revising the requirement for an evaluation by the attending physician or prescriber if PRN use of Psychotropic Drugs is to be extended beyond 14 days and instead relying on facility policies and procedures to set the circumstances for extending their use.
• Creates a distinction between a resident’s “general feedback or complaints” and “grievances” as it proposes changes to the Grievance Process by (1) eliminating the designation of a “Grievance Official” in favor of an “individual responsible” for overseeing the grievance process and also eliminating several specific duties that the grievance official had, such as maintaining the confidentiality of all information associated with the grievance, issuing written grievance decisions to the residents, and coordinating with state and federal agencies as necessary; (2) Rolling back the information to be included in a written grievance decision, such as the steps taken to investigate the grievance and whether the grievance was confirmed; and (3) decreasing the length of time from 3 years to 18 months that the facility has to maintain records relating to the grievance.
• Reducing the amount of time an Infection Preventionist, responsible for overseeing the facility’s infection prevention and control program, is required to be in the facility from “at least part-time” to the very vague “sufficient time.”
• Decreasing the qualifications of the food and nutrition services director from certifications in dietary management or food service to 2 or more years in this position or completion of coursework in food safety and management.
• Eliminating notice to the Long-Term Care Ombudsman of emergency transfers to an acute care setting when return to the facility is expected.
• Eliminating detailed requirements for the Quality Assurance and Performance Improvement (QAPI) program, including relating to the program’s design and scope, program feedback, data systems, and monitoring, among other things.

From: The National Consumer Voice for Quality Long-Term Care – 1001 Connecticut Avenue, NW, Suite 632 – Washington, DC 20036 – telephone: (202) 332-2275 – info@theconsumervoice.org

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David Wingate is an estate planning and elder law attorney at Estate and Elder Planning by David Wingate. The Estate and Elder Planning office services clients with powers of attorneys, living wills, Wills, Trusts, Medicaid and asset protection. The Elder Law office has locations in Frederick, Washington and Montgomery Counties, Maryland.

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