Reg's Blog

CMS Releases Final Rule on SNF Conditions of Participation

The long-awaited final rule on the revised/new SNF Conditions of Participation is set for publishing on October 4 in the Federal Register. The public inspection version is available now, including the comments from the Proposed Rule at this link: https://s3.amazonaws.com/public-inspection.federalregister.gov/2016-23503.pdf  The whole document is over 900 pages.  The salient portions that include the regulatory changes/summary of provisions is the first 14 or so pages.

Two things to remember for policy readers and folks in the industry.  First, what is available is the “law” not the interpretive guidelines that expands on the law in a way that creates enforcement regulations and the roadmap or “how to”.  The Final Rule is absent this information.  CMS still needs to develop this element.  Second, implementation will occur in phases.  The first phase is set for November 28, 2016 with minor changes that most providers should be ready for or are parts (related or integrated) from annual rule releases/updates (CMS updates PPS for each provider segment annually) already disclosed.  For example, QMs that translate into this rule regarding unnecessary drugs, antipsychotics-psychotics, etc.  These are now encapsulated in the rule but frankly, not new in scope.  The second phase is November 2017 and the third phase, 2019.

In November of last year, concurrent with the release of the Proposed Final Rule, I wrote a piece and did a webinar for HCPro on this topic.  The written piece is here: http://wp.me/ptUlY-iT  In my review of the two, what I though would move forward fundamentally “intact” did. What I was concerned about however, didn’t change much based on the over 10,000 comments.  There is definitely, a “Camel’s nose under the tent” element with regard to staffing requirements; though not an overt regulation.  The devilish elements are around the “facility assessments” for  staff adequacy and competency, etc. and the food service requirement to meet individual preferences plus serve nutritionally adequate, palatable meals, etc.  As one of the main issues in any environment remains food (always a certain number of complaints), this one could prove very, very prickly when it comes to survey/enforcement.  The summary of changes/provisions is below, as published.

• Basis and scope (§483.1)

 We have added the statutory authority citations for sections 1128I(b) and (c) and section

1150B of the Social Security Act (the Act) to include the compliance and ethics program,

quality assurance and performance improvement (QAPI), and reporting of suspicion of a

crime requirements to this section.

• Definitions (§483.5)

 We have added the definitions for “abuse”, “adverse event”, “exploitation”,

“misappropriation of resident property”, “mistreatment”, “neglect”, “person-centered

care”, “resident representative”, and “sexual abuse” to this section.

• Resident rights (§483.10)

 We are retaining all existing residents’ rights and updating the language and organization

of the resident rights provisions to improve logical order and readability, clarify aspects

of the regulation where necessary, and updating provisions to include advances such as

electronic communications.

• Freedom from abuse, neglect, and exploitation (§483.12)

 We are requiring facilities to investigate and report all allegations of abusive conduct.

We also are specifying that facilities cannot employ individuals who have had a

disciplinary action taken against their professional license by a state licensure body as a

result of a finding of abuse, neglect, mistreatment of residents or misappropriation of

their property.

• Admission, transfer, and discharge rights (§483.15)

 We are requiring that a transfer or discharge be documented in the medical record and

that specific information be exchanged with the receiving provider or facility when a

resident is transferred.

• Resident assessments (§483.20)

 We are clarifying what constitutes appropriate coordination of a resident’s assessment

with the Preadmission Screening and Resident Review (PASARR) program under

Medicaid. We are also adding references to statutory requirements that were

inadvertently omitted from the regulation when we first implemented sections 1819 and

1919 of the Act.

• Comprehensive Person-Centered Care Planning (§483.21) *New Section*

 We are requiring facilities to develop and implement a baseline care plan for each

resident, within 48 hours of their admission, which includes the instructions needed to

provide effective and person-centered care that meets professional standards of quality

care.

 We are adding a nurse aide and a member of the food and nutrition services staff to the

required members of the interdisciplinary team that develops the comprehensive care

plan.

 We are requiring that facilities develop and implement a discharge planning process that

focuses on the resident’s discharge goals and prepares residents to be active partners in

post-discharge care, in effective transitions, and in the reduction of factors leading to

preventable re-admissions. We are also implementing the discharge planning

requirements mandated by The Improving Medicare Post-Acute Care Transformation Act

of 2014 (IMPACT Act) by revising, or adding where appropriate, discharge planning

requirements for LTC facilities.

• Quality of care (§483.24)

 We are requiring that each resident receive and the facility provide the necessary care and

services to attain or maintain the highest practicable physical, mental, and psychosocial

well-being, consistent with the resident’s comprehensive assessment and plan of care.

• Quality of Life (§483.25)

 Based on the comprehensive assessment of a resident, we are requiring facilities to ensure

that residents receive treatment and care in accordance with professional standards of

practice, the comprehensive person-centered care plan, and the residents’ choices.

• Physician services (§483.30)

 We are allowing attending physicians to delegate dietary orders to qualified dietitians or

other clinically qualified nutrition professionals and therapy orders to therapists.

• Nursing services (§483.35)

 We are adding a competency requirement for determining the sufficiency of nursing staff,

based on a facility assessment, which includes but is not limited to the number of

residents, resident acuity, range of diagnoses, and the content of individual care plans.

• Behavioral health services (§483.40)

 We are adding a new section to subpart B that focuses on the requirement to provide the

necessary behavioral health care and services to residents, in accordance with their

comprehensive assessment and plan of care.

 We are adding “gerontology” to the list of possible human services fields from which a

bachelor degree could provide the minimum educational requirement for a social worker.

• Pharmacy services (§483.45)

 We are requiring that a pharmacist review a resident’s medical chart during each monthly

drug regimen review.

 We are revising existing requirements regarding “antipsychotic” drugs to refer to

“psychotropic” drugs and define “psychotropic drug” as any drug that affects brain

activities associated with mental processes and behavior. We are requiring several

provisions intended to reduce or eliminate the need for psychotropic drugs, if not

clinically contraindicated, to safeguard the resident’s health.

• Laboratory, radiology, and other diagnostic services (§483.50) *New Section*

 We are clarifying that a physician assistant, nurse practitioner or clinical nurse specialist

may order laboratory, radiology, and other diagnostic services for a resident in

accordance with state law, including scope-of-practice laws.

• Dental services (§483.55)

 We are prohibiting SNFs and NFs from charging a Medicare resident for the loss or

damage of dentures determined in accordance with facility policy to be the facility’s

responsibility, and we are adding a requirement that the facility have a policy identifying

those instances when the loss or damage of dentures is the facility’s responsibility. We

are requiring NFs to assist residents who are eligible to apply for reimbursement of dental

services under the Medicaid state plan, where applicable.

 We are clarifying that with regard to a referral for lost or damaged dentures “promptly”

means that the referral must be made within 3 business days unless there is

documentation of extenuating circumstances.

• Food and nutrition services (§483.60)

 We are requiring facilities to provide each resident with a nourishing, palatable, well balanced

diet that meets his or her daily nutritional and special dietary needs, taking into

consideration the preferences of each resident. We are also requiring facilities to employ

sufficient staff, including the designation of a director of food and nutrition service, with

the appropriate competencies and skills sets to carry out the functions of dietary services

while taking into consideration resident assessments and individual plans of care,

including diagnoses and acuity, as well as the facility’s resident census.

• Specialized rehabilitative services (§483.65)

 We have added respiratory services to those services identified as specialized

rehabilitative services.

• Administration (§483.70)

 We have largely relocated various portions of this section into other sections of subpart B

as deemed appropriate.

 We require facilities to conduct, document, and annually review a facility-wide

assessment to determine what resources are necessary to care for its residents

competently during both day-to-day operations and emergencies. Facilities are required

to address in the facility assessment the facility’s resident population (that is, number of

residents, overall types of care and staff competencies required by the residents, and

cultural aspects), resources (for example, equipment, and overall personnel), and a

facility-based and community-based risk assessment.

 Binding Arbitration Agreements: We are requiring that facilities must not enter into an

agreement for binding arbitration with a resident or their representative until after a

dispute arises between the parties. Thus, we are prohibiting the use of pre-dispute

binding arbitration agreements.

• Quality assurance and performance improvement (QAPI) (§483.75)

 We are requiring all LTC facilities to develop, implement, and maintain an effective

comprehensive, data-driven QAPI program that focuses on systems of care, outcomes of

care and quality of life.

• Infection control (§483.80)

 We are requiring facilities to develop an Infection Prevention and Control Program (IPCP)

that includes an Antibiotic Stewardship Program and designate at least one Infection

Preventionist (IP).

• Compliance and ethics program (§483.85) *New Section*

 We are requiring the operating organization for each facility to have in effect a compliance

and ethics program that has established written compliance and ethics standards, policies

and procedures that are capable of reducing the prospect of criminal, civil, and

administrative violations in accordance with section 1128I(b) of the Act.

• Physical environment (§483.90)

 We are requiring facilities that are constructed, re-constructed, or newly certified after the

effective date of this regulation to accommodate no more than two residents in a bedroom.

We are also requiring facilities that are constructed, or newly certified after the effective

date of this regulation to have a bathroom equipped with at least a commode and sink in

each room.

• Training requirements (§483.95) *New Section*

 We are adding a new section to subpart B that sets forth all the requirements of an

effective training program that facilities must develop, implement, and maintain for all

new and existing staff, individuals providing services under a contractual arrangement,

and volunteers, consistent with their expected roles.

Stay tuned.  I will have more forthcoming as survey guidelines come out, implementation is sorted, etc.

September 30, 2016 Posted by Reg Hislop III | Skilled Nursing | CMS, Compliance, Conditions of Participation, Final Rule, Industry Outlook, Management, Nursing Homes, SNF, Strategy, Trends, Washington | Leave a comment