Concurrent with the White House Conference on Aging, CMS released its “proposed” rules of reform for the SNF Conditions of Participation. The proposed rule is set for publication tomorrow in the Federal Register but readers with interest can access the document/PDF on this site on the “Reports and Other Documents” page. The Federal Conditions of Participation for SNFs have not undergone substantial revision or update since 1991 (OBRA implementation and PPS). A portion of the impetus for the update is the continued roll-out of the various pieces of the ACA (Obamacare). Within the ACA are several directions to the Secretary of Health and Human Services to make modernization recommendations and regulatory updates for all provider segments within the Medicare/Medicaid domain.
In researching the content for this post and reviewing the released document (402 pages), it seemed the best use of space and the most expeditious for readers/followers that I summarize the “impactful” elements rather than regurgitate the content of the document. In so doing, I need to preference my summary with a bit of a preamble.
The document is a release of “proposed” rules not concretized rules. There is a lengthy comment period and the final rule will morph from this release. While I won’t profess to have a crystal ball, I have certain insight and 30 plus years of experience so I think my summary will provide a solid look into what the salient changes are and what is likely to happen. The latter is for another post and a planned webinar (watch for details). The key to remember for anyone reading this post and any other information that is current and forthcoming regarding the proposed rule is that this is the “macro” level; the finite level is the implementation and the survey and enforcement data otherwise known as Interpretive Guidelines. What you see now, read now, etc. is and will be a far cry from how the same (when final) is interpreted at the facility level and enforced. I can’t emphasize this point enough as anyone who has a similar history to me knows, the stuff in the Federal Register as the actual law can be widely and sometimes, astoundingly interpreted and enforced at the ground level (again, fodder for another post).
To begin: What is proposed to change is an actual bifurcation of clarifications and new elements. Oddly enough, there isn’t a tremendous amount of overhaul moreover, language changes and “modernizations”. In certain instances, the words are just references to current industry vernacular such as “care transitions” rather than transfer and discharge. Resident Rights are also a section where nothing substantive changes other than references and language. Ironically (and I could run a fun contest here), a number of proposed changes are nothing more than an incorporation of what I have seen evolve as survey tasks and enforcement tasks (current) that aren’t really tied (bright line) to current law. (Feel free to comment to this post if you see some of these ironic elements in the proposed rule). So, without further dribble, here is what my summary of the key proposed changes.
- Transitions of Care: There are two elements of change – one in 483.15 (Transfer, Discharge) and the other in 483.30 (Physician Services). First, any transition from the SNF to any provider will require additional documentation to accompany the resident such as present illness, reason for transfer, medical history, etc. This isn’t major. The major element is for any non-scheduled hospital transfer, the rule would require an in-person evaluation of the resident prior to the transfer by a physician, physician assistant, or advance practice nurse (qualified nurse specialist or NP). This means the 2:00 AM transfer to the hospital for an urgent/emergent condition could not occur without one of the aforementioned individuals being “on-site” and certifying the need for the discharge. I believe this element will either evaporate from the final rule or be substantially changed and better defined. It is not only impractical but frankly, in rural areas, etc., completely improbable and virtually impossible (heavy emphasis on “virtual’ as that is the only way it could occur, via tele-medicine).
- Care Planning: A new section is added titled “Comprehensive Person-Centered Care Planning” that will require an initial care plan in 48 hours, an expanded definition of Interdisciplinary Team to include a CNA, a food service/nutrition staff member and a social worker. The rule also proposes to implement the requirements of the IMPACT Act (Improving Medicare Post-Acute Care Transformation Act) as pertaining to discharge planning (med reconciliation to include pre-admission meds and current meds plus OTCs, discharge summary recommendations for follow-up care, resources and information for the resident regarding his/her discharge plan, etc. I believe this element will remain in the final rule, substantially unchanged.
- Nursing Services: The proposed rule would incorporate a competency requirement for determining sufficient number of staff based on a facility assessment which incorporates number of residents, acuity, diagnoses and careplans. This one I see changing quite a bit as it is so vague and potentially fraught with huge implementation and oversight problems. It also as written, is a bit confusing and disconcerting in terms of a survey element.
- Behavioral Health: This is proposed as a new section. It, similar to Nursing Services prior, would require a facility assessment to determine direct care staff needs regarding staff competency and skill sets to meet resident psychological and mental health needs. Again, I see this changing dramatically as it is horribly vague and fraught with implementation challenges.
- Pharmacy Services: The proposed rule includes a required 6 month pharmacist review of resident medication regimes and upon admission when the resident is new and post-hospitalization (return). and monthly when the resident is on an antibiotic, psychotropic drug or any other drug that a QAA (Quality Assurance) committee requests the pharmacist review. Irregularities are to be noted and reported to the attending physician, the medical director and the director of nursing. Attending physicians are then to document that the irregularity was reviewed and any action taken/not taken plus the reasoning for the action. I see this fundamentally staying with some clarifications.
- Dental Services: The “big” shift is the proposed requirement that facilities are prohibited from charging a Medicare resident for loss or damage of dentures, if the facility is responsible for the dentures. I’m not sure where this will fall out but if it remains fundamentally intact, facilities will be paying for lots of dentures, regardless of how the loss or damage occurred.
- Food Service: Following thematically with other elements in the proposal, the requirement is for a facility to assess the resident population by care needs, diagnoses, acuity and census and employ sufficient staff with sufficient competency to provide food and nutritional services. A Director of Food Service in the proposal must meet certain education and training requirements such as Certified Dietary Manager, Certified Food Service Manager, have at least an Associate’s degree in food service management or similar from an accredited institution. The proposal also requires facility menus to be reflect the cultural, religious and ethnic needs and preferences of residents, be periodically updated and not limit the resident’s right to make food choices. In addition, facilities will have to allow residents to consume and store foods brought by visitors and families. I see major changes forthcoming in this requirement, especially around the staff adequacy determination, menus and food brought into the facility by visitors and families. The latter is a huge infection control risk.
- QAPI: This requirement is added anew – not surprising.
- Facility Assessment: This also is a new element requiring the facility to conduct and document a facility-wide assessment to insure the resources necessary to care for residents are available daily and in emergencies. This assessment must be updated regularly. The assessment must address the resident population by number, overall care delivered and the staff competency to provide the care and meet resident preferences plus incorporate a facility-based and community-based risk assessment. I see this element changing dramatically as it is vague and potentially problematic to enforce and implement.
- Binding Arbitration Agreements: The rule will require facilities that use such agreements to meet certain requirements. Chief among the provisions is that a resident and/or his/her legal representative cannot be required to sign the agreement upon admission. Additionally, the agreement must indicate the resident’s right to communicate with federal, state and local officials (regulatory) including Ombudsmen. I do not see much change in this element.
- Infection Control: In addition to having an Infection Control Program the facility would be required to have an Infection Control Officer and this individual’s primary responsibility must be infection control. I see the Infection Control Officer element subject to change.
- Compliance and Ethics Program: This is a new element requiring the operating organization (not just the facility if part of a larger organization) to have at each facility a compliance and ethics program with written standards, policies and procedures such that the same are capable of reducing criminal, civil ad administrative violations. I see this element staying but changing to be a bit more definitive and relevant.
- Staff Training Requirements: This is also a new element requiring facilities to develop, implement and maintain for all staff, a training program that encompasses (minimally) the following (I don’t see much change in this requirement);
- Communication
- Resident Rights and Facility Responsibilities
- Abuse, Neglect and Exploitation
- QAPI
- Compliance and Ethics
- Ongoing education for CNAs in dementia education and abuse prevention (12 annual hours minimum)
- Behavior Health Training
The estimate provided by CMS for implementation cost at the facility level is $46,491 in the first year, $40,685 in the following year totaling $729 million industry-wide in the first year. I guarantee that these numbers are light by 50% or more and in stable to declining reimbursement periods (now and going forward), this will be the driving point the industry will use in lobbying Congress, among the other points noted herein.