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Revisions to the Federal Nursing Home Regulations

Newly Released Regulations

The Centers for Medicare and Medicaid Services recently released the following:

Consumer Voice materials related to the rules:

Current Federal Requirements

2016 Final Regulations

On October 4, 2016, the final regulations for nursing homes participating in the Medicare and/or Medicaid programs were published in the Federal Register.

Consumer Voice, along with Justice in Aging and the Center for Medicare Advocacy, created a brief overview of the regulations, including positive and negative effects for nursing home residents.  Click the following links to navigate this page:

Pre-Dispute Arbitration Ban

One of the most notable requirements included in the final regulations is the prohibition of pre-dispute arbitration clauses in nursing home contracts.  Read Consumer Voice's statement commending CMS on this requirement.  This portion of the revised rule has not gone into effect yet due to the preliminary injunction granted in the current lawsuit. 

In June 2017, CMS also issued proposed rules that rescind resident protections against these unfair provisions.  In the proposed rule, CMS removes the requirement preventing facilities from entering into pre-dispute arbitration agreements, and also removes the provision banning facilities from requiring these agreements as a condition of admission.  In response to this proposed rule, Consumer Voice sent a group letter containing over 850 signatures from individuals and over 150 signatures from national and state organizations opposing forced arbitration agreements in nursing homes.  Read the full letter with signatures here.

Attack on Regulations

Shortly after the rules went into effect, efforts have been pursued by the nursing home industry and CMS to delay implementation of parts of the rule, or even to repeal certain provisions. 

At the beginning of 2017, Congress targeted the rules for possible repeal through the Congressional Review Act.  Fortunately, the rules were not repealed.

In June 2017, CMS also requested stakeholder feedback about whether certain provisions should be eliminated and whether there were other changes that could be made to any part of the rules to reduce the burden on providers.  CMS requested feedback on the following requirements: (1) discharge notices to ombudsmen, (2) the grievance process, and (3) the QAPI process.  Read CMS's full request by clicking here.  In response to this requested feedback, Consumer Voice submitted comments and provided sample comments for other organizations and individuals to submit to CMS.

Currently, the attack on the regulations includes letters from both members of the U.S. House of Representatives and Senate to CMS requesting a delay of implementation of "the overly burdensome parts" in order to consider revisions to the regulations.  Click the links below to view all letters requesting a delay in implementation and re-evaluation of the regulations:

In response to the requests in delay of implementation of the regulations, Consumer Voice sent a letter signed by 23 national organizations, 217 state organizations, and more than 950 individuals opposing any efforts to revise, or delay implementation of, the nursing home requirements of participation.

Phase 2 Regulations and New Survey Process

On November 28, 2017, Phase 2 regulations went into effect, along with a new survey process, the "freezing" of health inspection ratings, and revised interpretive guidelines.  CMS's new survey process is referred to as the LTCSP (Long-Term Care Survey Process).  According to CMS, the LTCSP combines "the best" of both the Traditional and Quality Indicator Survey processes into a single nationwide survey process.  To learn more about this process, please click on the following links:

See Consumer Voice's statement on the Phase 2 regulations and new survey process by clicking here.

Changes in Enforcement 

On November 28, 2017, an 18-month moratorium on full enforcement of certain Phase 2 requirements began.  This moratorium means that nursing homes will not be financially pealized for violating the standards of care to which requirements the moratorium applies.  Read CMS's memo to view all the requirements included in this moratorium.  See Consumer Voice's statement on the moratorium here.

In addition to the 18-month moratorium, CMS issued a memo discouraging the use of per day fines for violations that occurred before a nursing home inspection, allowing avoidable nursing home deaths to be met with fines less than $21,000.  This per instance fine can be easily written off as the cost of doing business.

Tracking CMS' Rollback of Nursing Home Protections

In April 2018, the House Energy and Commerce Committee sent a strong letter to CMS stating that a number of reports and tragic events had raised questions about the adequacy of CMS’ oversight of nursing homes. The Committee requested a wide range of documents and information from CMS. On September 6, 2018 the U.S. House Subcommittee on Oversight and Investigations for held a hearing examining federal oversight and efforts to ensure quality of care and resident safety in nursing homes.  Read Consumer Voice's statement on the hearing here.

Justice in Aging, with Consumer Voice, and some of our close partners created a tracker of industry lobbying and resulting administrative actions, as well as a series of policy alerts providing more detail about the specific protections, weakened or at risk of being weakened by industry lobbying.   To view a more detailed chart including all the actions taken against the revised federal nursing home regulations, click here.

Protecting Seniors Through Improving - Not Eroding - Nursing Home Quality Standards (June 2018) - This webinar provided background on existing law, including the Nursing Home Reform Law (OBRA ’87) and Affordable Care Act; Trump Administration actions to eliminate protections, such as the ban on mandatory arbitration agreements, and proposed deregulation of Medicare and Medicaid nursing home requirements; the continuing widespread abuse of antipsychotic and other psychotropic drugs; the links between nurse staffing levels and quality; and nursing home financial structures and the rise of private equity models that divert resources away from providing high quality care. Speakers also provided information on state-specific data and steps we can take to improve quality.  Watch the recording below and download the slides here.  Find the handout on how you can help protect nursing home resident protections here.

News

In Spring 2018, Consumer Voice Executive Director Lori Smetanka, along with Eric Carlson and Nancy Stone, wrote an article published in the National Academy of Elder Law Attorneys (NAELA) Journal entitled "Advocating for Nursing Facility Residents Under the Revised Federal Requirements." The article provides a comprehensive guide to the revised federal nursing facility regulations, focusing on care planning and person-centered care; admission, transfer, and discharge procedures; grievance procedures; resident rights, choice, safety, and self-determination; staffing, medications, and quality of care; and protections from abuse, neglect, and exploitation. It also discusses advocacy and enforcement issues and further CMS rulemaking activities under the Trump administration which will likely result in changes to the rules.

On February 14, 2018 U.S. Senators Richard Blumenthal (D-CT) and Amy Klobuchar (D-MN) led a group of twelve senators in a letter to the U.S. Department of Health and Human Services (HHS) and the Centers for Medicare & Medicaid Services (CMS) urging CMS to restore rules designed to enforce nursing home health and safety standards.  Consumer Voice worked with Senator Blumenthal's office to urger other Senators to support and sign onto the letter.

On May 30, 2018, 17 Attorneys General submitted a letter to the Centers for Medicare and Medicaid Services condemning the federal actions that would delay the enforcement of protections for Medicare and Medicaid beneficiaries who receive care in skilled nursing facilities.  Read Consumer Voice's statement supporting the letter here.

On June 25, 2018, Consumer Voice staff, Lori Smetanka and Robyn Grant, joined several advocacy organizations in a meeting with CMS Administrator Seema Verma and two members of her team to discuss our recommendations for the nursing home Requirements of Participation (RoPs). When asked for written recommendations prior to the meeting, advocates submitted a statement calling on CMS to retain the RoPs as issued in October 2016 and indicating our disagreement with the premise that the rules needed to be revised to reduce provider burden.

On September 6, 2018 the U.S. House Subcommittee on Oversight and Investigations for held a hearing examining federal oversight and efforts to ensure quality of care and resident safety in nursing homes.  Read Consumer Voice's statement on the hearing here.

Rule Resources

Consumer Voice prepared Part I of the Summary of Key Changes in the revised federal nursing home regulations related to Resident Rights; Abuse, Neglect, and Exploitation; and Admission, Transfer and Discharge Rights.  This summary provides an overview of key changes in these three sections that will go into effect in Phase 1 on November 28, 2016.

Consumer Voice also has prepared Part II of the Summary of Key Changes in the revised federal nursing home regulations for the sections on Resident Assessment (§483.20) – Training Requirements (§483.95).  It is designed to highlight what is different between the prior rule and the final rule and includes only those parts of the rule that went into effect in Phase 1 on November 28, 2016.

Summary of Key Changes in the Rule – Phase 2 - This summary sheet is designed to provide an overview of key changes in the revised federal nursing home regulations that went into effect November 28, 2017 as part of Phase 2.  The purpose of the summary is to highlight what is different (new or modified) between the prior rule and the final rule.

Summary of Key Changes in the Rule - Phase 3 - This summary sheet is designed to provide an overview of key changes in the revised federal nursing home regulations that will go into effect on November 28, 2019 as part of Phase 3.  The purpose of the summary is to highlight what is different (new or modified) between the prior rule and the final rule.

Consult Consumer Voice's Side-By-Side Comparison of Revised & Previous Federal Nursing Home Regulations for an in-depth look at all the provisions in the revised federal regulations.  The side-by-side classifies which provisions are revised, new, or exactly the same as the previous language.  If the provision is revised, the side-by-side lists the previous language from which it was revised.  In addition, the side-by-side denotes the implementation phase for each provision.

Consult Consumer Voice's Revised Interpretive Guidelines with a Clickable Table of Contents for easier navigation in CMS's Interpretive Guidelines.

Phase 1 of the revised regulations for nursing homes participating in Medicare and/or Medicaid programs will be implemented on November 28, 2016. A side-by-side chart includes references to the Ombudsman Program comparing the revised regulations and related language from the preamble to the current regulations. The chart shows which requirements are new and indicates whether the regulations are included in Phase 1 or 2 (Phase 2 must be implemented by November 28, 2017). For more information, visit NORC's website.

Presentations

Several presentations took a closer look at elements of the revised federal nursing home regulations.  View the following presentations here.

Training and Consumer Education Materials

  • Transfer and Discharge - These materials can be used for training and consumer education for Ombudsman program representatives, members of resident and family councils, and community education.  

    • Prezi - video, with voiceover

    • Prezi - clickable, without voiceover

    • Prezi script

    • PowerPoint

    • Fact Sheet: Nursing Home Discharges You’ve Been Told to Leave…Now What? - This fact sheet was developed for long-term care consumers to inform them about their rights regarding involuntary discharges. This fact sheet can also be used in training by and for Ombudsman program representatives, for members of resident and family councils, facility-in-service training, and community education.

  • Abuse, Neglect, Exploitation and Misappropriation of Property - These materials can be used for training and consumer education for Ombudsman program representatives, members of resident and family councils, and community education.  

  • Residents' Rights: Your Life, Your Care, Your Choices

Issue Briefs

Consumer Voice, in partnership with Justice in Aging and the Center for Medicare Advocacy, is developing a series of briefs entitled "A Closer Look at the Revised Nursing Facility Regulations."  

  • Why the Recently-Revised Nursing Home Regulations are Vital for Nursing Home Residents - This fact sheet provides a quick overview of some of the important new provisions, so that stakeholders and policymakers can better understand the revised regulations’ important role in improving nursing facility care. The revised regulations provide many benefits to nursing facility residents, including an increased focus on addressing a resident’s needs and preferences. 
  • Assessments, Care Planning, and Discharge Planning - This brief provides an overview of the regulations in these areas and highlights provisions that can be useful in advocating for improved quality of care and quality of life.  For instance, the revised assessment process must now gather information about a resident's preferences, goals, and there is greater emphasis on the participation of the resident and resident’s representative participate in the care planning team.  Also, care planning must include planning for discharge, to give residents an increased ability to move out of the facility into the community. The brief gives information on effective dates, how to find the regulations, and concludes with practical tips for residents and advocates.
  • Unnecessary Drugs and Antipsychotic Medications - This brief outlines the recent changes in unnecessary drug regulations, including a discussion of a broader category of psychotropic drugs, along with new controls over “as needed” (PRN) psychotropic drugs. The revised regulations also expand requirements for drug regimen reviews.
  • Involuntary Transfer and Discharge - This brief explains the minor changes in transfer and discharge regulations, which include narrowing the facility’s ability to base a transfer/discharge on a supposed inability to meet the resident’s needs, by requiring increased documentation by the resident’s physician. The regulations also limit transfer/discharge for nonpayment.
  • Nursing Services - This brief explains the recent changes in nursing services regulations, which include placing a greater emphasis on establishing minimum comptencies and skill sets for all nursing personnel.  In addition, the regulations have increased requirements for in-service training of nursing personnel.
  • Admission - This brief explains the changes in admission, bedhold and return regulations, which include broadly prohibiting facilities from using admission agreements or other documents that waive a resident's rights.  The revised regulations also prohibit pre-dispute arbitration agreements, but this consumer protection is currently blocked by a court order.
  • Visitation Rights - This brief explains changes in visitation rights including the right to receive visitors, written policies and procedures and other facility requirements, notice requirements, and visitation privileges.
  • Rehabilitation Services - This brief covers how the substantive requirements for specialized rehabilitative services are largely unchanged from the prior version of the regulations, with the exception of "respiratory therapy," which is added to the list of services that a facility must provide to its residents who need them.
  • Return to Facility After Hospitalization - This brief explains bed hold rights when a resident returns to a facility after a hospitalization.  The brief provides information on advance notification of bed hold rights and residents' rights if they return to a facility after a bed hold period has been exceeded.
  • Grievances and Resident/Family Councils - This brief covers the resident's right to file grievances and the facility's requirement to work to resolve those concerns promptly.  Each facility must have a grievance policy and provide residents with information on how to file a grievance.  Also, residents have a right to form a resident council, and family members and resident representatives have the right to form a family council.  The facility must act upon council concerns and recommendations.
  • Quality of Care - The substantive requirements for quality of care are retained in the revised regulations and CMS has affirmed the regulations' goals of supporting person-centered care and enabling each resident to attain his or her highest level of well-being.  This brief covers those regulations as well as providing information on how the quality of care provisions have been reorganized in the revised regulations.
  • Oppose Weakening and Delay of Federal Nursing Home Rules - This brief provides an overview of the revised federal nursing home regulations, concerns, the importance of the regulations for consumers, and tips on what can be done to help consumers.

CMS Resources

  • The Centers for Medicare and Medicaid Services published a memo on the Revision to State Operations Manual (SOM) Appendix PP for Phase 2, F-Tag Revisions, and Related Issues.  It includes a Phase 2 Tag Crosswalk and revised Appendix PP.
  • CMS released an advance copy of revisions to the State Operations Manual (SOM), Appendix PP with the revised regulations and tags (see this memo for more details).
  • CMS has developed online surveyor training regarding implementation of the revised nursing home requirements. CMS developed the training for Regional Offices, State Survey Agencies, providers, and other stakeholders and it includes information about the regulations, revised surveyor guidance, and the survey process. To access courses visit the CMS Survey and Certification Group Integrated Surveyor Training website. More information about this training is available in this memo.
  • In August 2017, CMS announced the Quality and Certification Oversight Reports (QCOR) website launch in an intiaitive for increased transparency.  The QCOR website is meant for providers, suppliers, and stakeholders to have better access to data.  The QCOR website launch replaces the previously known Survey and Certification Providing Data Quickly (S&C PDQ) system. S&C PDQ provided summarized survey and certification data, including results of on-site inspections of providers and suppliers.  The QCOR site is meant to be more easily accessible.  It provides the results of CMS survey and certification activity over the last 10 years.  The QCOR website can be accessed at https://qcor.cms.gov.
  • LTC Survey Critical Element Pathways, updated August 2018

Implementation Timeframes

On October 4, 2016, the final regulations for nursing homes participating in the Medicare and/or Medicaid programs were published in the Federal Register. The regulations are effective on November 28, 2016 and will be implemented in three phases. The chart below shows the implementation timeframes. Additional details regarding the revised regulations will be posted in the coming months.

This summary provides an overview of key changes in the revised federal regulations related to Resident Rights; Abuse, Neglect, and Exploitation; and Admission, Transfer and Discharge Rights that will go into effect in Phase 1 on November 28, 2016.

Note: The regulations included in Phase 1 must be implemented by November 28, 2016, regulations included in Phase 2 must be implemented by November 28, 2017, and regulations included in Phase 3 must be implemented by November 28, 2019.

Regulatory section

Implementation deadline

§ 483.1 Basis and scope

This entire section will be implemented in Phase 1.

§ 483.5 Definitions

This entire section will be implemented in Phase 1.

§ 483.10 Resident rights

The section will be implemented in Phase 1 with the following exception:

• (g)(4)(ii)–(v) Providing contact information for State and local advocacy organizations, Medicare and Medicaid eligibility information, Aging and Disability Resources Center and Medicaid Fraud Control Unit—Implemented in Phase 2.

§ 483.12 Freedom from abuse, neglect, and exploitation

This section will be implemented in Phase 1 with the following exceptions:

• (b)(4) Coordination with QAPI Plan—Implemented in Phase 3.

• (b)(5) Reporting crimes/1150B—Implemented in Phase 2.

§ 483.15 Admission, transfer, and discharge rights

This section will be implemented in Phase 1 with the following exceptions:

• (c)(2) Transfer/Discharge Documentation—Implemented in Phase 2.

§ 483.20 Resident assessment

This entire section will be implemented in Phase 1.

§ 483.21 Comprehensive person-centered care planning

This section will be implemented in Phase 1 with the following exceptions:

• (a) Baseline care plan—Implemented in Phase 2.

• (b)(3)(iii) Trauma informed care—Implemented in Phase 3.

§ 483.24 Quality of life

This entire section will be implemented in Phase 1.

§ 483.25 Quality of care

This section will be implemented in Phase 1 with the following exception:

• (m) Trauma-informed care—Implemented in Phase 3.

§ 483.30 Physician services

This entire section will be implemented in Phase 1.

§ 483.35 Nursing services

This section will be implemented in Phase 1 with the following exception:

• Specific usage of the Facility Assessment at § 483.70(e) in the determination of sufficient number and competencies for staff— Implemented in Phase 2.

§ 483.40 Behavioral health services

This section will be implemented in Phase 2 with the following exceptions:

• (a)(1) As related to residents with a history of trauma and/or post-traumatic stress disorder—Implemented in Phase 3.

• (b)(1), (b)(2), and (d) Comprehensive assessment and medically related social services—Implemented in Phase 1.

§ 483.45 Pharmacy services

This section will be implemented in Phase 1 with the following exceptions:

• (c)(2) Medical chart review—Implemented in Phase 2.

• (e) Psychotropic drugs—Implemented in Phase 2.

§ 483.50 Laboratory, radiology, and other diagnostic services

This entire section will be implemented in Phase 1.

§ 483.55 Dental services

This section will be implemented in Phase 1 with the following exceptions:

 • (a)(3) and (a)(5) Loss or damage of dentures and policy for referral—Implemented in Phase 2.

• (b)(3) and (b)(4) Referral for dental services regarding loss or damaged dentures—Implemented in Phase 2.

§ 483.60 Food and nutrition services

This section will be implemented in Phase 1 with the following exceptions:

• (a) As linked to Facility Assessment at § 483.70(e)—Implemented in Phase 2.

• (a)(1)(iv) Dietitians hired or contracted with prior to effective date—Built in implementation date of 5 years following effective date of the final rule.

• (a)(2)(i) Director of food & nutrition services designated to serve prior to effective—Built in implementation date of 5 years following the effective date of the final rule.

• (a)(2)(i) Dietitians designated to after the effective date—Built in implementation date of 1 year following the effective date of the final rule.

§ 483.65 Specialized rehabilitative services

This entire section will be implemented in Phase 1.

§ 483.70 Administration

This section will be implemented in Phase 1 with the following exceptions:

• (d)(3) Governing body responsibility of QAPI program—Implemented in Phase 3.

 • (e) Facility assessment—Implemented in Phase 2.

§ 483.75 Quality assurance and performance improvement

This section will be implemented in Phase 3 with the following exceptions:

• (a)(2) Initial QAPI Plan must be provided to State Agency Surveyor at annual survey—Implemented in Phase 2.

• (g)(1) QAA committee—All requirements of this section will be implemented in Phase 1 with the exception of subparagraph (iv), the addition of the ICPO, which will be implemented in Phase 3.

• (h) Disclosure of information—Implemented in Phase 1.

• (i) Sanctions—Implemented in Phase 1.

§ 483.80 Infection control

This section will be implemented in Phase 1 with the following exceptions:

• (a) As linked to Facility Assessment at § 483.70(e)—Implemented in Phase 2.

• (a)(3) Antibiotic stewardship—Implemented in Phase 2.

• (b) Infection preventionist (IP)—Implemented in Phase 3.

• (c) IP participation on QAA committee—Implemented in Phase 3.

§ 483.85 Compliance and ethics program

This entire section will be implemented in Phase 3. 

§ 483.90 Physical environment

This section will be implemented in Phase 1 with the following exceptions:

• (f)(1) Call system from each resident’s bedside—Implemented in Phase 3.

• (h)(5) Policies regarding smoking—Implemented in Phase 2.

§ 483.95 Training requirements

This entire section will be implemented in Phase 3 with the following exceptions:

• (c) Abuse, neglect, and exploitation training—Implemented in Phase 1.

• (g)(1) Regarding in-service training, (g)(2) dementia management & abuse prevention training, (g)(4) care of the cognitively impaired—Implemented in Phase 1.

• (h) Training of feeding assistants—Implemented in Phase 1.

Proposed Regulations

The Centers for Medicare and Medicaid Services (CMS) has officially published its proposed revisions to the current regulations (also known as the Requirements of Participation) for nursing homes participating in the Medicare and/or Medicaid programs. This proposed rule is available to view in full at the Federal Register website here. 

As you may recall, CMS announced that it would be revising the Requirements of Participation for nursing homes in 2012; at that time, Consumer Voice, other advocates, and stakeholders submitted detailed recommendations to the agency on ways the current rules could be updated and strengthened (click here to see recommendations made by Consumer Voice in 2012 and here to view additional recommendations submitted in 2014.).

Consumer Voice has developed a comparison of the proposed and current regulations. To view this side-by-side comparison in PDF format, click here. The side-by-side in Excel format can be accessed here.

In addition, the non-profit, citizen advocacy group Public Citizen has put together a petition individuals can sign asking CMS to ban forced, pre-dispute arbitration in nursing home contracts as part of the proposed revisions to the nursing home regulations. Click here to sign their petition and here to learn more about this issue. 

The Requirements of Participation set critical standards for the quality of life and quality of care for nursing home residents. CMS must receive feedback from advocates like yourselves on the proposed revisions to ensure that any changes to the existing regulations would benefit, and not harm, residents.