Tightened nursing home rules may be repealed, advocates worry

By Cheryl M. Keyser

Revisions to nursing home regulations — in most cases, consumer friendly — were issued by Medicare toward the end of 2016, and already some advocacy groups are concerned that they may be repealed.

The National Consumer Voice for Quality Long-Term Care, a respected organization dealing with issues of concern to nursing home residents, issued a warning to that effect. If any such action is taken, however, there are certain deadlines which must be met.

Under legislation known as the Congressional Review Act (CRA), the two Houses of Congress are given specific time frames for instituting such a repeal. The Senate has 60 legislative days, which started Jan. 24, and the House of Representatives clock started ticking on Jan. 31. For a repeal to be successful, it must pass by a two-thirds vote in both houses.

As yet, there has been no indication on the part of the new administration to take any such measures.

Consumer Voice and other advocacy groups are especially concerned about this possibility because these new regulations cover a number of positive steps that have been long fought for.

With an aging population, nursing homes are vital for patients who need both acute and chronic care. For many years, state inspectors were the only ones to examine these facilities, but instead of concentrating on patient care, they basically looked at the construction and physical safety, becoming known as a “bricks and mortar” inspection.

Over the years, advocates have insisted on more personalized care for residents, a better living environment, and a recognition of their rights. In the latter case, for instance, one of the most notable addition to nursing home oversight has been the introduction of the ombudsman program, which focuses on protecting the needs of this vulnerable group.

But there has always been a call to deal with additional problems ranging from better staff training to the use of antipsychotic drugs.

One of the most important changes Medicare (also known as CMS for the Centers for Medicare and Medicaid Services) has made in its new regulations, according to most nursing home advocates, is the banning of pre-dispute arbitration clauses in admissions contracts.

When someone enters a nursing home, they are often ill and disoriented. Yet on of the first things they must do is sign a contract for payment. Included in the language is a requirement that the patient waive their rights to sue if something bad happens. Furthermore, the facility is allowed to select the arbitrator. Medicare now refers to this situation as “unconscionable.”

“This new requirement is an important victory for residents ad families,” said Lori Smetanka, executive director of the National Consumer Voice, “It is patently unfair to require consumers to waive their rights during the emotional, stressful, and often chaotic admission process. Residents deserve the ability to resolve their disputes with facilities, many of which involve incidences of mistreatment or neglect, in the court system.”

According to Medicare, “…Long-term care residents should have a right to access the court system is a dispute with a facility arises, and that any agreement to arbitrate a claim should be knowing and voluntary.”

Speaking for the American Health Care Association (AHCA), President and CEO Mark Parkinson expressed his disappointment with this statement and noted that this “provision clearly exceeds CMS’s statutory authority and is wholly unnecessary to protect residents’ health and safety.” He added that AHCA will spend the coming months determining what “overall impact those mandates will have on our members.”

Among the other changes coming into effect:

Home environment. This includes such things as allowing the resident to decide when and what to eat and even to be provided with snacks at irregular hours. Residents will also be able to select their roommates and receive visitors when they wish as long as it does not bother other residents.

Training. This has been expanded to include not only staff and contract employees, but also volunteers and includes residents’ rights and issues of abuse. Certified nursing assistants will be required to be specifically trained on how to deal with patients with dementia.

Care planning. The facility must develop a care plan for each residents within 48 hours after admission, and the resident must be involved as much as possible.

Staffing. The new regulations only require “sufficient” staffing levels and a registered nurse eight hours daily. But “sufficient” is not defined and no minimum standard is set for the number of staff on duty.

Abuse and exploitation. Although not as comprehensive as many organizations would like, this change does tighten regulations on employees with histories of disciplinary problems. Any suspicion of a crime must now be reported to law enforcement and the state certification agency.

Involuntary discharge. Residents can no longer be transferred to another facility or discharged for non-payment if the appropriate paperwork has been submitted to a payor, such as Medicaid, and an evaluation is pending. A copy of a discharge notice must also be sent to the ombudsman.

Grievances. All facilities must now have a grievance official and a grievance process and the residents presenting complaints must receive a written grievance decision outlining how the decision was reached.

The final Medicare document runs to 700 pages and represents the first major rewrite of these regulations since 1991.

For more information, visit the Medicare website at http://www.cms.gov/ and the National Consumer Voice at www.theconsumervoice.org.