CMS Proposes to Amend, Delay Certain Requirements of Participation

Posted on July 17, 2019 by Jonathan Lips

The Centers for Medicare & Medicaid Services (CMS) has announced a proposed rule that would lighten some regulatory burdens for nursing facilities and delay implementation of certain Phase 3 requirements. 

CMS issued its proposal July 16, and the agency will accept public comments until Sept. 16. According to the agency’s announcement, the rule will “allow LTC facility providers to devote more of their time and resources to their residents – instead of unnecessary paperwork – by eliminating obsolete or excessively burdensome regulations.” 

Most notably, CMS is proposing to change certain requirements relating to Quality Assurance and Performance Improvement (QAPI) and Compliance and Ethics Programs that are scheduled to take effect this November and to delay implementation of those requirements until 2020. 

The agency intends to revise the requirement for settings to implement a QAPI program by removing prescriptive requirements to allow greater flexibility in tailoring their QAPI program to the specific needs of their individual facility; and to remove many of the requirements from the Compliance and Ethics section that not expressly required by statute. Proposed revisions include removing the requirements for a compliance officer and compliance liaisons and revising the requirement for reviewing the program from annually to biennially. 

Other proposed changes would address notification to the Ombudsman of transfers and discharges, allow greater flexibility in the use of PRN orders for psychotropic medications, and relax the current qualifications for a director of food and nutrition services. 

Separately on July 16, CMS also issued a final rule updating the requirements nursing homes must meet to use binding arbitration agreements. In October 2016, the previous administration banned the use of pre-dispute binding arbitration agreements in long term care facilities but was unable to enforce it due to a legal challenge and subsequent injunction. 

In June 2017, in accordance with the injunction, CMS published a proposed rule that would remove the ban on pre-dispute binding arbitration agreements and solicited public comments. CMS determined that resident rights must be protected by allowing them the ability to choose their method of dispute resolution, while preserving access to all possible choices, including arbitration, a method that often costs resident much less than litigation. 

The final CMS rule removes the ban on binding arbitration agreements while requiring nursing homes to ensure residents have the ability to choose the method of dispute resolution they want. CMS is allowing binding arbitration agreements but will prohibit nursing homes from requiring residents to sign binding arbitration agreements as a condition for receiving care and will require nursing homes to inform residents or their representatives that they are not required to sign a binding arbitration agreement. 

Finally, CMS is prohibiting nursing home arbitration agreements from including language preventing residents or anyone else from communication with federal, state, or local officials. 

Our team will prepare a detailed summary of these proposed rules for members in the coming days, so please watch for another story on this issue in next week’s Advantage. Please contact Jon Lips (jlips@leadingagemn.org) if you have any questions in the meantime.