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Residents' Rights and Protections Rolled Back in CMS Rules

August 02, 2019

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.  

In contrast, however, to the rollbacks for residents, the proposed rules include additional detail that must be included in written record for Informal Dispute Resolution, such as providing the facility with written notification of the independent reviewer’s recommendation and final decision, including a rationale for that decision.  

Comments on these proposed rules are due September 16, 2019.

Consumer Voice will be developing sample comment letters for individuals and groups.  (Don't miss the Action Alert with this information by making sure you are on our emai list.)

Final Rule Allows Pre-Dispute Arbitration Agreements

On the same day, CMS also released a final rule on Long-Term Care Facility Requirements allowing Arbitration Agreements (84 Fed. Reg. 34718).

The final arbitration rule reverses the ban on pre-dispute arbitration agreement mandated in the 2016 rules.  Permitting pre-dispute arbitration places consumers at a disadvantage during the admission process, usually a time of crisis and great stress for individuals and families; binds them to arbitration for any dispute – whether it be a financial issue or abuse or neglect; and strips consumers of their constitutional right to have their dispute heard by a jury. Asking individuals and their families to sign these binding agreements, prior to the advent of any disputes, is inherently unfair to consumers.  
While the new rules permit facilities to ask residents and their representatives to sign arbitration agreements, they may not be required as a condition of admission or continuation of care.  Additionally, the rule requires the facility to ensure the resident or his or her representative understands the agreement, it must provide for an arbitrator and venue that both parties agree to; and includes the right to rescind an agreement within 30 days.    

Even the strongest consumer protections, however, can’t negate the enormous stress consumers and their families feel during the admission process, and the  pressure they will continue to feel to sign such agreements because of fear they still might not be admitted or of consequences on future care if they don’t sign.

It is disappointing that the interests of providers were put over residents in the development of these rules.  

To learn more, register for our webinar on August 8 at 4:00pm ET; or visit the Consumer Voice’s website at www.theconsumervoice.org.

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