The end of 2016 brought forth the most wide-ranging revision of federal rules for nursing homes in well over a quarter of a century. And for good reason; the patient population at nursing home and long-term care facilities is booming. It is estimated that 1.5 million people reside in more than 15,000 long-term care facilities or nursing homes that participate in Medicare or Medicaid programs. The changes reflect a shift toward more “person-centered care,” including requirements for speedy development of care plans, more flexibility and variety in meals and snacks, greater review of a resident’s drug regimen, better security, improved grievance procedures and scrutiny of involuntary discharges. All of these are suspected causes for unnecessary hospital readmissions and infections, declining quality of care, and needed safety measures for residents in these facilities.
The federal Medicare and Medicaid programs pay for most of the nation’s nursing home care — roughly $75 billion in 2014 — and in return, facilities must comply with government rules. The new regulations, proposed last year by Health and Human Services take effect in three phases. The first kicked in late last month. It states that long-term care facilities who receive federal funding are precluded from entering into mandatory pre-dispute resolution agreements with patients, such as arbitration clauses.
Overall, the new regulations allow residents and their families “to be much more engaged in the design of their care plan and the design of their discharge plans. Until now, a person’s care has too often been decided only by the nursing home staff. If the resident is lucky, he or she is informed about what that care will entail, what will specifically be done and who will do it.
One controversial measure prohibits nursing homes from requiring residents to agree in advance that any disputes will be settled through a privately run arbitration process instead of the court system. The industry association has objected, claiming that Medicare officials have authority only to regulate matters related to residents’ health and safety and that an individual’s right to use arbitration cannot be restricted. The ban is on hold until an association lawsuit, to force the government to drop the provision, is decided.
HHS reviewed nearly 10,000 comments on its draft proposal before finalizing changes. Here are highlights of the requirements now in effect:
* Making the nursing home feel more like home: The regulations say that residents are entitled to “alternative meals and snacks . . . at non-traditional times or outside of scheduled meal times.” Residents can also choose their roommates, which may lead to siblings or same-sex couples being together. And a resident also has “a right to receive visitors of his or her choosing at the time of his or her choosing,” as long as it doesn’t impose on another resident’s rights.
*Improving infectious disease safety: Facilities must update their long-term care infection prevention and control program, including requiring an infection prevention and control officer and an antibiotic stewardship program that includes antibiotic use protocols and a system to monitor antibiotic use.
*Better care planning: Improving care planning, including discharge planning for all residents with involvement of the facility’s interdisciplinary team and consideration of the caregiver’s capacity, giving residents information they need for follow-up after discharge, and ensuring that instructions are transmitted to any receiving facilities or services. This includes allowing dietitians and therapy providers the authority to write orders in their areas of expertise when a physician delegates the responsibility and state licensing laws allow.
* Bolstering grievance procedures: Nursing homes must now appoint an official who will handle complaints and follow a strengthened grievance process. Decisions must be in writing. It expressly prohibits the use of pre-dispute binding arbitration agreements. However, it does not prohibit the parties from agreeing to arbitration after a dispute has arisen.
* Challenging discharges: Residents can no longer be discharged while appealing the discharge. They cannot be discharged for nonpayment if they have applied for Medicaid or other insurance, are waiting for a payment decision or are appealing a claim denial. Also, if a nursing home refuses to accept a resident who wants to return from a hospital stay, the resident can appeal the decision. Also, residents who enter the hospital have a right to return to their same room, if it is available. A state’s long-term-care ombudsman must now get copies of any involuntary discharges so the situation can be reviewed as soon as possible.
* Expanding protection from abuse: The definition of abuse now includes financial exploitation. Nursing homes are prohibited from hiring any licensed professional who has received a disciplinary action because of abuse, neglect, mistreatment or financial exploitation of residents.
* Ensuring a qualified staff: Facilities must have enough skilled and competent staff to meet residents’ needs. They must ensure that long-term care facility staff members are properly trained on caring for residents with dementia and in preventing elder abuse.