CMS to Publish Proposed Rule Allowing LTC Pre-Dispute Arbitration Agreements as Condition of Admission

By on June 8, 2017

Today (June 8, 2017), CMS is publishing its proposed rule removing prohibitions against binding pre-dispute arbitration provisions in long-term care agreements.  On October 4, 2016, CMS published a final rule entitled “Reform of Requirements for Long-Term Care Facilities.” The final rule amended 42 C.F.R. 483.70(n) to prohibit LTC facilities from entering into pre-dispute arbitration agreements with any resident or his or her representative, or requiring that a resident sign an arbitration agreement as a condition of admission. The final rule required 1) that an agreement for post-dispute binding arbitration must be entered into by the resident voluntarily; 2) that the parties must agree on the selection of a neutral arbitrator; and 3) that the arbitral venue must be convenient to both parties. The arbitration agreement could be signed by another individual only if allowed under state law and all other requirements under the Federal Rule were met.  Particularly, a resident’s admission or right to remain at the facility could not be made contingent upon the resident or his or her representative signing an arbitration agreement.

However, in October 2016, the American Health Care Association and a group of affiliated nursing homes succeeded in obtaining a preliminary injunction in the United States District Court for the Northern District of Mississippi.  The district court held that the plaintiffs were likely to prevail in their challenge to the 2016 final rule. It concluded that it would likely hold that the rule’s prohibition against LTC facilities entering into pre-dispute arbitration agreements was in conflict with the Federal Arbitration Act (FAA), 9 U.S.C. 1 et seq. The court also reasoned that it was unlikely that CMS could justify the rule, or could overcome the FAA’s presumption in favor of arbitration, by relying on the agency’s general statutory authority under the Medicare and Medicaid statutes to establish rights for residents (sections 1891(c)(1)(A)(xi) and 1919(c)(1)(A)(xi) of the Act) or to promulgate rules to protect the health, safety and well-being of residents in LTC facilities (sections 1819(d)(4)(B) and 1919(d)(4)(B) of the Act).  CMS subsequently issued a nation-wide instruction on December 9, 2016, directing state survey agency directors not to enforce the 2016 final rule’s prohibition of pre-dispute arbitration provisions,  while the injunction remained in effect.

Under the recently announced policy change, CMS would retain provisions of the 2016 final rule related to protecting the interests of LTC residents, including the requirement that the agreement be explained to the resident and his or her representative in a form and manner that he or she understands. However, the proposed rule would remove the following:

  • the requirement at §483.70(n)(1) precluding facilities from entering into pre-dispute agreements for binding arbitration with any resident or resident’s representative;
  • the prohibition at §483.70(n)(2)(iii) banning facilities from requiring that residents sign arbitration agreements as a condition of admission to a facility;
  • certain provisions regarding the terms of arbitration agreements.

The proposed rule would retain the requirement that a copy of the signed agreement for binding arbitration and the arbitrator’s final decision must be retained by the facility for 5 years and be available for inspection upon request by CMS or its designee. Comments on the proposed rule must be received at CMS by 5:00 p.m. on August 7, 2017.

Filed under Arbitration, Long Term Care, Medicaid, Medicare, Medicare Rules, Nursing Home Regulations, Nursing Homes Tagged with , , , , , , , , ,

2016 Was a Busy Year: Developments in Nursing Facility Arbitration Law

By on February 24, 2017

Nursing home arbitration agreements get a bad rap. But as most practitioners in the field know, nursing facility arbitration agreements seem here to stay, at least (possibly) until recently.  Arbitration is thought by many to offer significant flexibility and efficiency vis-à-vis litigation, and proponents in the skilled nursing industry cite arbitration as an important tool to reduce litigation costs – including, of course, the costs associated with “runaway jury” punitive and noneconomic damages verdicts, which can be crippling to industry participants.

The enforceability of nursing facility arbitration agreements has long been a hotly contested issue.  It probably is fair to say that, in general, courts broadly view these agreements as enforceable in a vacuum, but they will approach any particular instance with a healthy degree of skepticism.  Occasionally, state courts have tried to go one step further than analyzing and rejecting nursing facility arbitration agreements on an ad hoc basis and have announced a per se rule against enforceability of such agreements.  That typically does not end well for those courts.

The relatively recent Marmet decision is a good example of this latter scenario.  There, the West Virginia Supreme Court issued a decision in a consolidated group of cases holding that pre-dispute nursing facility arbitration agreements were void as against public policy under state law  The decision was appealed to the U.S. Supreme Court, which granted certiorari and promptly slapped down the state court.  In a (relatively) scathing per curiam opinion, the Court emphasized:  “As this Court reaffirmed last Term, ‘[w]hen state law prohibits outright the arbitration of a particular type of claim, the analysis is straightforward:  The conflicting rule is displaced by the FAA.’  … That rule resolves these cases.  Since that decision, state courts seem to be somewhat more receptive to honoring and enforcing nursing facility arbitration agreements.

In 2016, however, federal regulators attempted to throw a curveball to the skilled nursing industry.  On September 28, 2016, the Centers for Medicare and Medicaid Systems (“CMS”) announced a new rule ostensibly intended “to make major changes to improve the care and safety of the nearly 1.5 million residents in the more than 15,000 long-term care facilities that participate in the Medicare and Medicaid programs.”  As part of this new rule, which would go into effect on November 28, 2016, CMS banned the use of pre-dispute arbitration agreements by nursing homes on a going-forward basis.  It noted that the rule did not apply to existing arbitration agreements (thus avoiding running afoul of the Federal Arbitration Act), and it specifically allowed nursing facilities and plaintiff-residents to agree to arbitrate after a dispute has arisen.  But the sort of prospective arbitration agreement that is presented to residents and potential residents at the time of admission would be prohibited from now on.  Although the rule technically only applied to nursing homes that accepted Medicare and Medicaid funds, as a practical matter, that included virtually all such facilities.

Needless to say, this was a controversial measure.  And the industry did not take it lying down.  On October 17, 2016, a group of trade organizations and nursing facility operators filed a lawsuit in the U.S. District Court for the Northern District of Mississippi challenged the pre-dispute arbitration rule.  On November 7, 2016, the court ultimately agreed with the challengers and entered an order preliminarily enjoining it.  It held in relevant part that a federal agency regulation effectively banning a certain type of arbitration agreement, even on a prospective-only basis, would be flatly inconsistent with the overarching pro-arbitration policy and purpose embodied by the FAA.  On December 9, 2016, CMS capitulated and sent a memorandum to Medicaid state survey administrators announcing that the rule should not be enforced unless and until the litigation was resolved and the injunction was lifted.  Especially in light of the change in administrations, the ultimate status of the pre-dispute arbitration rule is uncertain at best, and it is currently not being enforced.

So where does that leave nursing facility arbitration agreements?  Are facilities free to include them in admissions packets without fear that they will be unenforceable?  The answer to those questions necessarily is a qualified one.  Pre-dispute nursing home arbitration agreements still are not unenforceable per se, but at the same time, they will be looked upon with varying degrees of skepticism by courts.  As noted above, many post-Marmet state courts seem to have gotten the message that animus towards nursing home arbitration agreements will not be tolerated by the federal judiciary.  But “many” does not mean “all” (or even, necessarily, “most”), and there are still a number of states and jurisdictions in which courts appear likely to continue to go out of their way to find reasons as to why any particular arbitration agreement should not be enforced.

As such, it is crucial that any nursing facility or operator of facilities that wants to institute (or continue to use) an arbitration program go to great lengths to dot every “i” and cross every “t” when offering residents the opportunity to enter into an arbitration agreement.  This includes proactively reviewing the form arbitration agreement currently in use to ensure it complies with state contract law requirements, and training admissions staff so that the avoid typical pitfalls when presenting arbitration agreements to residents or prospective residents to sign (e.g., making sure that the resident has capacity to sign or that there is sufficient documentation for a representative to sign on behalf of that individual, making sure that the agreement is properly witnessed and countersigned, etc.).

Litigation over the arbitrability of a nursing facility dispute can itself be so costly and time-consuming that it removes many of the efficiencies and related advantages of arbitration. As is usually the case, it is best to try to address that potential issue on the front end of things.

 

Filed under Arbitration, Assisted Living Care, Health Care Facilities, Medicaid, Nursing Home Regulations, Nursing Homes

CMS ISSUES CHANGES TO REQUIREMENTS OF PARTICIPATION AFFECTING LTC FACILITIES: ARBITRATION IS OUT—ARE WAIVER OF JURY TRIALS IN?

By on October 4, 2016

Effective November 28, 2016, long-term care facilities that participate in Medicare and Medicaid will no longer be able to enter into “pre-dispute” agreements for binding arbitration with their residents.  The Centers for Medicare & Medicaid Services (CMS) issued the final rule on September 28, 2016, after consideration of extensive comments from key stakeholders in the long-term care community regarding proposed revisions.

Under the rule, a facility can ask a resident or a resident’s representative to enter into an arbitration agreement after a dispute arises.  However, the facility must comply with several requirements, such as ensuring that the agreement provides for the selection of a neutral arbitrator and a venue convenient to both parties.  Further, a resident’s right to remain in the facility cannot be contingent upon entering into the arbitration agreement and the agreement cannot contain language that discourages communications with federal, state or local surveyors and other officials.

As one of the more controversial changes, critics of the new arbitration rule have reacted strongly against the change and have commented that this part of the rule “clearly exceeds” CMS’s statutory authority.  In its response to public comments, CMS explains that the Secretary of Health and Human Services has the authority to administer the program under the Social Security Act by setting general practice parameters for payment under Medicare and Medicaid.  CMS further cites to its authority to promulgate regulations for residents’ health, safety and well-being and states that there is “significant evidence that pre-dispute arbitration agreements have a deleterious impact on the quality of care for Medicare and Medicaid patients.”  Nevertheless, there are several legal bases upon which to challenge the agency’s ability to preclude an arbitration agreement.

While CMS’s comments cite to a resident’s waiver of the right to a jury trial as a major factor considered in its decision to disallow pre-dispute arbitration agreements, the final rule does not expressly preclude jury trial waiver provisions within facility admissions agreements.  Jury waivers may help to address runaway verdicts that have become a concern in negligence cases in past years, while still respecting expressed concerns that arbitration presents undue costs to residents and creates an environment of “secrecy.”  Note that state law may vary on whether such waivers are enforceable.

Also remarkable is CMS’s comment that it will not address waiver of class-action litigation in this rule, but rather reserve the issue for consideration during future rulemaking.

The broad-sweeping final rule also contains several other provisions that directly affect compliance programs, training of nursing staff, updating infection and control programs, and other key requirements that long-term care facilities must comply with in order to participate in the Medicare and Medicaid programs.  It is advisable for long-term care facilities to promptly consult with a knowledgeable healthcare attorney to assess modifications to admissions packets and to otherwise establish the framework necessary to comply with the revised Requirements of Participation.

Filed under Arbitration, Centers for Medicare and Medicaid Services, Department of Health and Human Services, Health Care Facilities, Hospice Programs, Long Term Care, Medicaid, Medicare, Nursing Home Regulations, Nursing Homes, Uncategorized Tagged with , , , , ,

CMS Releases Nursing Home Enforcement Information

By on June 15, 2016

On June 3, 2016, the Centers for Medicare and Medicaid Services (CMS) posted information about nursing home provider enforcement from 2006 to 2014 as part of the agency’s “ongoing efforts to ensure transparency, consistency of application of enforcement remedies, and data management to track enforcement actions across the nation.” The report includes general information about nursing home enforcement, frequently asked questions about enforcement, and enforcement reports detailing the distribution of federal enforcement remedies from 2006 to 2014.

The CMS enforcement reports provide information about CMS and state survey agency enforcement actions for all Health Inspection and Life Safety Code Standard and Complaint surveys from 2006 to 2014. The reports show the percent of providers with remedies in effect (rather than imposed) and detail civil monetary penalties by region, as well as the frequency of per day and per instance civil monetary penalties in effect. There is additional data on the number of facilities by region with the following enforcement remedies: denial of payment; discretionary and mandatory denial of payment for new admissions; directed in service training; directed plan of correction; termination; state monitoring; temporary management; transfer of residents; and facility closure.

The CMS report also discusses the impact of the recession that began in December 2007 and officially ended in June 2009. The period before the recession showed an increase in survey activities, initiatives, and deficiency citations, while there was a decline in overall survey activities and enforcement actions after the recession began.

Filed under Centers for Medicare and Medicaid Services, Long Term Care, Medicare, Nursing Home Regulations, Nursing Homes

Key Points to Consider When It Comes to Bed Rail Safety

By on June 12, 2014

In recent years, the use of bed rails has received increased scrutiny from the health care community and regulators.  There have been many reports of death and injury, such as entrapment, falls, and asphyxiation, due to bed rail use.  Between Jan. 1, 1985, and Jan. 1, 2013, the Food and Drug Administration (FDA) received 901 incident reports of patients caught, trapped, entangled, or strangled in hospital beds, including 531 deaths.

In January, the FDA, working in conjunction with the Consumer Product Safety Commission (CPSC), developed a new webpage that provides guidance about bed rail use.  The guidance addresses bed rail safety, safety concerns about bed rails, and recommendations for health care providers, consumers, and caregivers about bed rails. Among the information available is clinical guidance to assess an individual patient’s needs when using a bed rail and a bed safety entrapment kit containing information and tools that can be used to assess entrapment risk.

The Colorado Department of Public Health and Environment (CDPHE) also has information on its website to assist nursing homes with bed safety.  The CDPHE has pointed out the risks of using restraints such as bed rails.  The risk of bed rails include falls caused by climbing over the rails, becoming trapped between the bed rail and mattress, which can result in asphyxiation, and fracture from rolling into the transfer rails.

The FDA cautions that health care providers should avoid the routine use of bed rails and that bed rails should not be used as a substitute for proper monitoring, especially for people at high risk of entrapment.  Likewise, the CDPHE encourages the use of alternatives before using bed rails, such as lowered beds, futons, or waterbeds.

Nursing homes often run into conflict with family members who request bed rails.  However, nursing homes cannot use family requests to justify using bed rails.  Surveyor guidance emphasizes that the legal surrogate or representative cannot give permission to use restraints for the sake of discipline or staff convenience when the restraint is not necessary to treat the resident’s medical condition.  In other words, the facility cannot use restraints in violation of 42 C.F.R. § 483.13(a) solely based on a family member’s request or approval.

Filed under Bed Rail Safety, Colorado Department of Public Health and Environment, Consumer Product Safety Commission (CPSC), Food and Drug Administration (FDA), Nursing Home Regulations

Nursing Home Emergency Preparedness: New CMS Checklist and Proposed Regulations

By on May 14, 2014

Following recent natural and man-made disasters such as 9/11, Hurricane Katrina, and other floods and fires, the federal government has increased its focus on emergency preparedness.  Federal regulations – 42 C.F.R. § 483.75(m) – require that Medicare- and Medicaid-certified nursing homes have written emergency plans and provide employees with emergency preparedness training.

The Centers for Medicare & Medicaid Services (CMS) provided information to health care providers, including nursing homes, about emergency preparedness in Survey and Certification Letter S&C-08-01, issued on October 24, 2007.  This guidance provides answers to frequently asked questions and resources on emergency preparedness planning resources.

In a 2012 report, the Office of Inspector General (OIG) reviewed state survey data for emergency preparedness in nursing homes.  Although most long-term care facilities had emergency plans, the majority of the plans were wholly inadequate.  Half of the sampled plans contained only 50 percent of the CMS-recommended checklist items, according to the OIG’s “Gaps Continue to Exist in Nursing Home Emergency Preparedness and Response During Disasters: 2007-2010.”

On February 28, 2014, CMS issued Survey and Certification Letter S&C-14-12, a revised emergency preparedness checklist.  Some of the key items in the checklist are the following:

  • Collaborate with local emergency management agency: Work with local emergency management agencies to ensure the development of an effective emergency management plan.
  • Analyze each hazard: Analyze the specific vulnerabilities of the facility and determine actions for each identified hazard.
  • Decision criteria for executing plan: Include factors to consider when deciding whether to evacuate and shelter in place. Determine decision-maker, and chain of command.
  • Develop shelter-in-place plan: Provide for various emergency measures, such as assessing whether the facility can withstand the threat, measures to secure the building, at least seven days worth of resources such as food and power, and security plan.
  • Develop evacuation plan: Consider factors such as pre-determined evacuation locations, evacuation routes, and adequate food supply and logistical support.
  • Communication infrastructure contingency: Develop communication plan in the event of telephone failures, such as walkie-talkies and ham radios.

Concluding that current emergency preparedness regulatory requirements are not comprehensive enough to address the complexities of actual emergencies, CMS issued a proposed rule that 17 different providers and suppliers must meet to participate in the Medicare and Medicaid programs.  “Medicare and Medicaid Programs; Emergency Preparedness Requirements for Medicare and Medicaid Participating Providers and Suppliers,” 78 Fed. Reg. 79081 (Dec. 27, 2013).  The proposed rule addresses the following gaps that CMS believes exist in the current regulations: (1) communication to coordinate with other systems of care with local jurisdictions; (2) contingency planning; and (3) personnel training.

Because long-term care facilities are unique among other health care providers as many of the residents can be expected to have long-term or extended stays, the proposed rule also requires these facilities to develop an emergency preparedness communication plan.  The emergency preparedness communication plan would include a means of providing information about the general condition and location of residents under the facility’s care.

Finally, the proposed rule for long-term care facilities also requires emergency plans to utilize an “all-hazards” approach, which, in an emergency situation, would include a directive to account for missing residents.

In light of the new checklist and CMS’ recent focus on emergency preparedness, health care providers, including nursing homes, should evaluate their emergency preparedness plans.  In addition, facilities should look out for new emergency preparedness regulations.

Filed under Emergency Preparedness, Medicaid, Medicare, Nursing Home Regulations

The OIG 2014 Work Plan – Thoughts and Observations on Nursing Homes

By on February 24, 2014

On Jan. 31, the Office of Inspector General (OIG) released its 2014 Work Plan, in which it announces and discusses the projects it intends to focus on in the coming year.  I plan to do a number of posts on the Work Plan, but I want to start with an industry that receives surprisingly little attention in the document – nursing homes.

OIG only announced five areas of focus with respect to nursing homes.  The first concerns Medicare Part A billing.  OIG noted that it previously observed skilled nursing facilities (SNFs) increasingly billing for higher levels of therapy even though beneficiary characteristics remained the same; it also explained that SNFs had a high (25 percent) billing error HC BLOG_nursing home2rate.  There are two main takeaways from this.  Nursing homes need to really examine their billing practices and procedures and ask themselves if there are any systems or protocols that might improve accuracy.  And, it’s my experience that a high care level claim isn’t so much unnecessary on its face, it’s that the provider doesn’t keep or record enough information to prove that it was.  Therefore, insofar as high care level services are being billed, SNFs might think about expanding their recordkeeping practices to ensure that enough documentation is present to justify the claim.

OIG’s second area of focus involves questionable billing practices for nursing homes submitting Medicare Part B claims.  The agency specifically references stays during which benefits are exhausted or the three-day prior inpatient requirement is not met.  Obviously, that doesn’t give us much to go on.

The third area of focus is a little more specific, though probably inapplicable to most providers.  OIG indicates that it intends to focus on state agency verification of deficiency corrections.  Federal regulation requires nursing homes cited for deficiencies to provide state regulators with a plan of correction to explain how they will correct the problems.  The Centers for Medicare & Medicaid Services (CMS) State Operations Manual further requires states to verify that the cited deficiencies have been corrected.  In the Working Plan, OIG cautioned that “one State survey agency did not always verify that nursing homes corrected deficiencies.”  It’s unclear which state that was, or whether it was only the one state.  Nonetheless, I expect most states will crack down on post-correction verification.  This has two related ramifications.  When devising a plan of correction, it is essential that nursing homes be realistic.  Chances are, state surveyors will put nursing homes’ feet to the fire to make sure they take the steps they say they will.  Also, nursing homes should make sure they follow through and do what they say they will on the timetable promised.

OIG’s fourth targeted area is interesting.  It wants to evaluate the results of the CMS National Background Check Program (NBCP).  This program essentially gives states money at a 3:1 federal-state ratio (not to exceed $3 million) to help providers run comprehensive background checks on their employees.  States that participate in this program include Alaska, California, Connecticut, Delaware, Florida, Illinois, Kentucky, Missouri, New Mexico, North Carolina, Oklahoma, Rhode Island, and Utah as does the District of Columbia.  It’s interesting that the list of states is so small.  CMS has handed out tens of millions of dollars over the past several years, and most states – including Colorado – already require background checks for employees of long-term care (LTC) facilities.  The NBCP requires a more comprehensive background check system, but that seems like a lot of money to leave on the table for something states will do most of anyway.  In any event, I wouldn’t be surprised to see Colorado and a bunch of other states opt in to the NBCP or CMS make it mandatory.

The fifth area of focus involves Medicare patient hospital admissions as a result of manageable or preventable conditions at nursing facilities.  This was the subject of a 2013 OIG Report.  It’s hard to come up with a good recommendation for this one.  On the one hand, it’s probably a good thing when an LTC facility and a doctor err on the side of caution and hospitalize an ill or injured resident – to do otherwise would risk a treatable condition deteriorating.  On the other hand, though, if CMS or OIG is going to start tracking hospitalizations on a facility-by-facility basis and scrutinizing those facilities that have too high of a rate, erring on the side of caution may have real regulatory consequences.  I suppose the best thing to say is this is an issue that needs to be closely monitored going forward.

Image courtesy of Flickr by Pictures by Ann

Filed under Medicare, Nursing Home Regulations

Video Surveillance in Nursing Homes – Consider the Risks

By on January 29, 2014

Easy access to video technology and media reports of abuse and neglect in nursing homes may lead family members to place surveillance cameras in the rooms of their loved ones.  Only Oklahoma, pursuant to Okla. Stat. § 63-1-1953.6, New Mexico, and Texas explicitly permit a nursing home resident or the resident’s legal representative to place surveillance cameras in a resident’s room. These statutes allow monitoring only if certain requirements are met, such as obtaining consent from the resident or the resident’s representative, and from the resident’s roommate.  The majority of states (and the federal government) do not have laws explicitly permitting or forbidding resident monitoring.

In the absence of state statutory guidance, if a nursing home decides to allow a family member to video-record a resident, the HC BLOG_security cameranursing home should consider the following issues to ensure the recording does not violate a resident’s privacy and rights under the Health Insurance Portability and Accountability Act (HIPAA), or violate any state laws, such as invasion of privacy, eavesdropping, or wiretapping.

Consent:  Has the resident, if competent, consented to the recording?  If the resident is not competent, has the resident’s medical power of attorney or guardian consented?  Nursing homes should consider how to document consent, such as in the resident’s chart or on a consent form.  Failure to obtain consent could result in violation of the resident’s privacy and HIPAA rights.

Roommate:  If the resident has a roommate, the roommate likely will end up on the video.  Facilities should consider whether to obtain proper consent from the roommate, as discussed above, or only allow video-recording in the absence of any roommate.

Visitors:  Facilities should consider whether visitors should be notified that video-recording is occurring to avoid violating the privacy rights of visitors, who could include other facility residents.  For example, the facility could post a sign on the resident’s door indicating that recording is in progress.

Other residents:  Facilities should consider how the video-recording device is aimed and whether it records sound or images from the hallway or resident care areas.  Again, recording video of the hallway or other resident care areas could violate the privacy and HIPAA rights of other residents.  While it is easier to aim the video-recording device into the room to avoid hallway images, it is difficult to ensure that hallway conversations are not recorded.  Thus, facilities should consider whether to forbid any audio on the video.

Violation of specific state statutes:  Depending upon the state, video-recording could result in criminal invasion of privacy or a violation of eavesdropping or wiretapping statutes.  For example, in Colorado a person commits criminal invasion of privacy under C.R.S. § 18-7-801 if that person knowingly observes or takes a photograph (including video) of another person’s “intimate parts” without consent where the person photographed has a reasonable expectation of privacy. Also in Colorado, a violation of C.R.S. § 18-9-304, the eavesdropping statute, can occur if a person not visibly present during a conversation or discussion knowingly overhears or records the conversation or discussion without the consent of at least one of the principal parties to the conversation. Thus, if the resident does not consent or if another resident is picked up on the audio portion of the video without consent, this could constitute illegal eavesdropping. Nursing homes should examine specific state statutes relating to invasion of privacy, eavesdropping, and wiretapping.

Facility administrators should carefully consider the risks of video-recording and address the concerns listed above before allowing it to occur.  While this discussion focused on nursing homes, it applies equally to other health care facilities such as assisted living facilities and hospitals.

Image courtesy of Flickr by Frédéric Bisson

Filed under Nursing Home Regulations

CMS Nursing Home Regulatory Guidance — 2013 Developments

By on January 15, 2014

The Centers for Medicare & Medicaid Services (CMS) periodically issues guidance on federal nursing home regulations in the form of a memorandum to state survey agency directors.  The survey and certification memos can assist nursing homes in survey preparation and other regulatory compliance efforts.  Some of the important 2013 CMS guidance is summarized below. 

HC BLOG_nursing homeCardiopulmonary Resuscitation (CPR): Nursing homes should examine their CPR policy for compliance with recent CMS guidance.  S&C Memorandum, No. 14-01-NH.  According to CMS, nursing homes cannot implement facilitywide no-CPR policies.  Facility policy should specifically direct staff to initiate CPR when cardiac arrest occurs for residents who have requested CPR in their advance directives; who have not formulated an advance directive; who do not have a valid do not resuscitate (DNR) order; or who do not show American Heart Association (AHA) signs of clinical death as defined in the AHA Guidelines for CPR and Emergency Cardiovascular Care.  In addition, facility policy should not limit staff to calling 911 when cardiac arrest occurs.  Before emergency medical services arrive, nursing homes must provide basic life support, including CPR, to a resident experiencing cardiac arrest in accordance with an advance directive, or if there is no advance directive or DNR order.

Although CMS acknowledges that CPR is ineffective in the elderly nursing home population, CMS notes the changing demographics in nursing homes.  In 2011, approximately one in seven nursing home residents were under age 65, many of whom were short-stay residents.  In addition, nursing home residents have become more ethnically diverse, which emphasizes the need for full implementation of advance directives and individualized care, CMS says.

The guidance states that nursing homes must ensure that CPR-certified staff is available at all times to provide CPR when needed.  However, CMS does not address which agencies can certify nursing home staff in CPR.  Because CMS refers to the AHA’s standards, it is likely that CMS would deem AHA CPR certification acceptable.

Access and Visitation Rights: CMS has issued a reminder concerning the right of nursing home residents to receive visitors.  S&C Memorandum No. 13-42-NH.  Nursing homes must provide 24-hour access to all individuals visiting with the resident’s consent.  However, certain visitors can be subject to reasonable restrictions designed to protect the security of all residents in the facility, such as denying access to individuals who engage in disruptive behavior.  Because CMS is reminding surveyors to ask during resident and family interviews if they understand that visitors are allowed 24 hours per day, nursing homes should review their visitation policies, as well as the implementation of these policies, to ensure that visits are not being limited or restricted against residents’ wishes, unless there is a reasonable restriction.

Naso-Gastric Tubes: CMS has revised surveyor guidance relating to naso-gastric tubes by expanding and clarifying the definition of naso-gastric tubes.  S&C Memorandum No. 13-17-NH.  Since CMS issued the regulation relating to naso-gastric tubes, found at 42 C.F.R. § 483.25(g), their use has become extremely rare, while the use of other types of enteral feeding tubes has become prominent.  The surveyor guidance expands the definition of naso-gastric tubes to include any feeding tube used to provide enteral nutrition to a resident by bypassing oral intake, such as a gastrostomy tube, jejunostomy tube, and a transgastric jejunal feeding tube.  Nursing homes should review their policies and procedures to ensure compliance with 42 C.F.R. § 483.25(g) for all residents who receive nutrition other than through oral intake.

Dementia Care: CMS has issued surveyor guidance relating to nursing home residents with dementia.  S&C Memorandum No. 13-35-NH.  The guidance expresses concern about the practice of using psychopharmacological medications to try to address behaviors without first determining whether there is a medical, physical, functional, psychological, emotional, psychiatric, social, or environmental cause.  CMS has created surveyor training about behavioral health and dementia care and updated the interpretative guidance in Appendix PP.  Based on the increased scrutiny of residents with dementia and the use of medications, nursing homes should review dementia care practices, including ensuring that medications, such as antipsychotics, are being used with adequate rationale.

Apparently nursing homes are doing a good job decreasing the use of antipsychotic drugs.  Several months after CMS issued its surveyor guidance on dementia care and drug use, it issued a press release stating that new data show that antipsychotic drug use is down in nursing homes nationwide.  The data show that nursing homes are using antipsychotic drugs less and pursuing more patient-centered treatment for residents with dementia and other behavioral health issues.

Image courtesy of Flickr by Sima Dimitric

Filed under Medicaid, Medicare, Nursing Home Regulations