On July 16, 2019, the Centers for Medicare & Medicaid Services (CMS) issued a Proposed Rule to reform the Medicare and Medicaid long-term care requirements that would provide changes and delay certain features of the Requirement of Participation (RoP). Additionally, CMS finalized a rule allowing nursing home operators to use arbitration agreements.

CMS provides that the Proposed Rule (for changes in the RoP) would increase the ability of health care professionals to apportion resources to improving resident care by eliminating or reducing requirements that impede quality care or that divert resources away from providing high-quality care. The proposed changes include a delay on certain aspects of Phase 3 of the new RoP set to take effect this November.

The proposed revisions involve the following areas:

• Requirements for Participation
  • Resident Rights (§483.10)
  • Admission, Transfer, and Discharge Rights (§483.15)
  • Quality of Care (§483.25)
  • Nursing Services (§483.35)
  • Behavioral Health (§483.40)
  • Pharmacy Services (§483.45)
  • Food and Nutrition Services (§483.60)
  • Administration (§483.70)
  • Quality Assurance and Performance Improvement (§483.75)
  • Infection Control (§483.80)
  • Compliance and Ethics Program (§483.85)
  • Physical Environment (§483.90)
• Survey, Certification, and Enforcement Procedures
  • Informal Dispute Resolution and Independent Informal Dispute Resolution (§488.331 and §488.431)
  • Civil Money Penalties: Waiver of Hearing, Reduction of Penalty Amount (§488.436)
  • Phase 3 Implementation of Overlapping Regulatory Provisions – would have an impact on provisions that fall into three primary areas
    • Designation and training of the Infection Preventionist (§483.80)
    • QAPI (§483.75)
    • Compliance and Ethics Program (§483.85).

Arbitration in nursing homes, banned by the Obama administration in 2016, was later reinstated. In 2017, a proposed rule was issued to reverse the ban by the Trump administration. The rule became final on July 16, 2019.

CMS stated in announcing the new rule on arbitration agreements; “The proposal supports patients and their caregivers by removing the ban on binding arbitration agreements while requiring nursing homes to ensure residents have the ability to choose the method of dispute resolution they want.”

More information can be found on the proposed rule at this website.

To be assured consideration, comments must be received at one of the addresses provided in the link above, no later than 5 p.m. on September 16, 2019.

If you have questions or concerns, please contact us.

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