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CMS proposes many positive changes to SNF Phase III requirements

Doug Beardsley
By Doug Beardsley  |  July 19, 2019  |  SNF/NF providers

Rarely do I get to write about reduced regulations, but this is an exception! On Tuesday July 16, 2019, the Centers for Medicare & Medicaid Services (CMS) published 185 pages of proposed revisions to the skilled nursing facility/nursing facility (SNF/NF) regulations in the Federal Register. The public has 60 days to comment on the proposed changes. 
  • You can view the full CMS proposed changes to the Phase III requirements of participation here
  • You can view the full CMS final rule to pre-dispute arbitration agreements here

Due to newsletter deadline constraints, this article will provide a brief summary of the proposed changes. Additional details will be forthcoming, including how you can support these proposals via the public comment process. Highlights of the proposed changes are as follows:
  • Delays the following Phase III requirements for one year after the effective date of finalization of the rule:
    • Certain elements of QAPI—program design and scope, program feedback, data systems, and monitoring, program systematic analysis and systematic action, program activities, governance and leadership, quality assessment and assurance
    • Required QAPI staff training
    • Inclusion of the infection preventionist on the facility’s Quality Assessment & Assurance Committee
    • Compliance and ethics program
    • Required compliance and ethics staff training
  • Choice of attending physician: CMS proposes to remove the language regarding informing residents about each of their physicians and limit it to the resident’s primary care physician at admission
  • Grievances: CMS proposes to clarify the difference (and therefore the obligations of the facility) between grievances and resident feedback; certain duties of the grievance officer are also proposed to be removed
    • Documentation regarding grievances is proposed to be retained for 18 months instead of the Phase III requirement of three years
  • Notice to the ombudsman of voluntary discharges to the hospital: CMS proposes to only require copies of discharge notices to the Office of Ombudsman for Long-Term Care in situations of involuntary discharge initiated by the facility; clarifies that transfers to an acute care facility when return is anticipated is not considered an involuntary discharge
  • Bed side rails: CMS proposes to remove references to the “installation” of side rails and replace it with “the use” of side rails, which will help when side rails cannot be removed due to bed design
  • Posting of nurse staffing: CMS proposes to reduce the length of time this documentation must be retained from 18 months to 15 months
  • Behavioral health: CMS proposes to remove behavioral health language that is duplicative in the specialized rehabilitative services requirement and where nursing services requirements and behavioral health services requirements overlap
  • Pharmacy services: CMS proposes to remove the requirement that PRN orders for psychotropic drugs for more than 14 days require a visit from the prescriber—instead the order can be extended per facility policy if the rationale is documented in the medical record
    • This effectively would remove the distinction between antipsychotic medications and other psychotropic medications
  • Dietary: CMS proposes to remove the requirement that if the facility does not employ a dietitian full time, the director of food and nutrition services must be a certified dietary manager—instead, CMS proposes that in these situations the director of food and nutrition services must have two or more years of experience in the position of director of food and nutrition services or has completed a minimum course of study in food safety that includes topics integral to managing dietary operations such as, but not limited to, foodborne illness, sanitation procedures, and food purchasing/receiving
  • Facility-wide assessment: CMS proposes to change the required frequency of a facility-wide assessment from annually to biannually (every two years)
  • QAPI: CMS proposes to restructure the QAPI section, removing many of the specific detailed requirements
    • The proposed QAPI requirement would “require facilities establish and implement written policies and procedures for feedback, data collection systems, and monitoring, including adverse events monitoring”
  • Infection control: CMS intends to maintain the training requirements for an infection preventionist (IP) (including the compliance date of 9-28-19)
    • CMS proposes to remove the detailed requirement that the IP work at the facility “at least part-time” and substitute that the IP must have “sufficient time” at the facility to meet the objectives set forth in the facility’s infection and prevention control program
  • Compliance and ethics program: CMS proposes the following:
    • Remove the requirement that each facility designate a compliance officer and a designated compliance liaison for organizations with five or more facilities 
    • Remove the annual review requirement and replace it with a “periodic assessment” of the program
    • Remove the requirement for a “compliance and ethics program contact person” to which individuals may report suspected violations
    • The operating organization for each facility “develop, implement, and maintain an effective compliance and ethics program that contains, at a minimum, established written compliance and ethics standards, policies, and procedures that are reasonably capable of reducing the prospect of criminal, civil, and administrative violations under the Act” 
    • Remove the requirement that the compliance and ethics program be overseen the by CEO, board of directors, etc. 
      • CMS instead recommends that the facility be held responsible for the effective operation of the program
  • Life Safety Code and FSES scoring: CMS proposes to allow facilities that were Medicare- or Medicaid-certified before July 5, 2016, that have previously used the FSES to determine equivalent fire protection levels, to continue to use the 2001 FSES mandatory values when determining compliance  for  containment, extinguishment and  people movement requirements
  • Resident rooms: CMS proposes the new resident room requirements apply only to newly constructed facilities and newly-certified facilities that have never previously been a long-term care facility
  • IDR and IIDR processes: CMS proposes that when a facility timely requests an IDR or an IIDR, the survey that is under protest shall not be entered into the CASPER system, thereby not affecting the facility’s five-star rating until the IDR or IIDR is completed
    • CMS is proposing that IDR and IIDRs s must be completed within 60 days
  • CMPs: CMS proposes to create a constructive waiver process that would produce the same, or better results for less money and effort

David Gifford, MD, AHCA senior vice president of quality and regulatory affairs and chief medical officer, said, "We are pleased that CMS preserved important advances in these regulations such as those addressing infection control and prevention and resident rights. At the same time, CMS has recognized the need to eliminate regulations that result in unnecessary paperwork. Many of the changes in today’s proposed rule will allow caregivers to devote more time to resident care instead of completing paperwork that does not help keep residents safe and healthy."

Pre-dispute arbitration restriction
In addition to the proposals to Phase III, CMS also published a final rule with changes to the current pre-dispute arbitration restriction. The CMS arbitration proposal involves a number of technical changes to the restriction. In addition, the CMS final rule appears to remove the “pre-dispute” restriction and includes the following proposals:
  1. A facility must not require any resident or his or her representative to sign an agreement for binding arbitration as a condition of admission to, or as a requirement to continue receiving care at, the facility and must explicitly  inform the resident or his or her representative of his or her right not to sign the agreement as a condition of admission to, or as a requirement to continue receiving care at, the facility
  2. A facility must ensure that the resident or his or her representative acknowledge that he or she understands the agreement
  3. An arbitration agreement must provide for the selection of a neutral arbitrator agreed upon by both parties
  4. An arbitration agreement must provide for the selection of a venue that is convenient to both parties
  5. An arbitration agreement must explicitly grant the resident or his or her representative the right to rescind the agreement within 30 calendar days of signing it
  6. An arbitration agreement must explicitly state that neither the resident nor his or her representative is required to sign an agreement for binding arbitration as a condition of admission to, or as a requirement to continue to receive care at, the facility
  7. When a facility and a resident resolve a dispute through arbitration, a copy of the signed agreement for binding arbitration and the arbitrator’s final decision must be retained by the facility for five years after resolution of that dispute and be available for inspection upon request by CMS or its designee.
AHCA President & CEO Mark Parkinson said, "We are still reviewing and evaluating the final rule, but we applaud CMS for allowing skilled nursing facilities to use pre-dispute arbitration agreements." 

Doug Beardsley  |  Vice President of Member Services  |  |  952-851-2489


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