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Call for Community Action: Speak up for Nursing Home Residents

Prepared by Lindsay Heckler, Esq.

The Centers for Medicare & Medicaid Services (CMS) has issued proposed rules for the purpose of reducing nursing home provider burden. The proposed rules do nothing to improve the quality of care in nursing homes. The Center for Elder Law & Justice is against the proposed changes and will be submitting comment to CMS. The quality of care in our nursing homes is an issue that affects everyone! Whether you enter into a nursing home for rehabilitation services or long term care, you have the right to quality care. It is our position that CMS’ proposed rule, if finalized, will harm many residents in the name of reducing nursing home provider burden.

CMS needs to hear from the public and how the proposed changes will impact you, current, and future residents. Tell your story and speak up!

Comments are due September 16, 2019. To review the propose rules and submit comment, go to wwww.regulations.gov and enter “CMS-2019-0105” into the search bar, or click here: https://www.regulations.gov/docket?D=CMS-2019-0105

Below is an overview of the proposed changes. The goal of this overview is to provide the public with the current federal requirements, the proposed change(s), and why the proposed change, if finalized, will harm residents.

I. Resident Right: Choice of Attending Physician

Current Federal Requirement

  • Nursing homes must ensure each resident remains informed of the name, specialty, and way of contacting the physician and other primary care professionals responsible for his/her care.

CMS Proposed Changes

  • Nursing home will only be required to inform residents of their primary care physician’s information at admission, when there is a change of such information, and upon request. 
  • Nursing homes will no longer be required to inform the resident of other primary care professionals responsible for his/her care.

Why the Proposed Change is Harmful to Residents

This is a safety and resident rights issue. The nursing home physician serves as the resident’s primary care physician. As such, it is the nursing home’s responsibility to manage all of its residents’ medical appointments and needs. Miscommunication about who is providing care to residents is too common. If CMS continues with this change, residents will be placed with the burden of managing multiple physicians and treatments, when it should be the nursing home.

If you or someone you know experienced miscommunication about primary care professionals, or were not informed of the name, specialty, and contact information of the professional, CMS needs to hear from you! Tell your story and your opinion on how this proposed change is harmful to residents.  

II. Resident Right: Grievance

Current Federal Requirement

  • Residents have the right to voice a grievance to the nursing home (or other agency or entity) without discrimination or retaliation.
  • “Grievance” is meant to be broad and includes: concerns with respect to care and treatment (which has or has not been provided), the behavior of staff and of other residents, and other concerns regarding their nursing home.
  • Every nursing home must have a grievance official who is responsible for:
    • Receiving and tracking grievance(s) through to their conclusion;
    • Leading any necessary investigations by the nursing home;
    • Maintaining confidentiality of all information associated with grievances;
    • Issuing written grievance decisions to the resident; and
    • Coordinating with state and federal agencies as necessary in light of specific allegations.
  • Written grievance response to the resident must include:
    • Date the grievance was received;
    • Summary statement of the resident’s grievance;
    • Steps taken to investigate the grievance;
    • Summary of the pertinent findings or conclusions regarding the resident’s concern(s);
    • Statement as to whether the grievance was confirmed or not confirmed;
    • Any corrective action taken or to be taken by the nursing home as a result of the grievance; and
    • Date the written decision was issued

CMS Proposed Changes

  • Limit the broad definition of ‘grievance’ by distinguishing between “general feedback” and “grievances.”
    • “General feedback”: stems from general issues that can typically be resolved by staff present at the time a concern is voiced;
    • “Grievance”: more serious and generally require investigations into allegations regarding the quality of care.
  • It will be up to the nursing home to define what is a “grievance” vs “general feedback”
  • Eliminate the position of grievance official.
  • Eliminate all the duties of the grievance official.
  • Eliminate majority of information to be included in written grievance decisions.
    • Nursing home would only have to include “pertinent information”

Why these Proposed Changes are Harmful to Residents

The proposed changes will rollback this necessary resident protection by distinguishing between “general feedback” and “grievances”. If finalized, it will be up to the nursing home to define what a grievance is, not the resident. Resident rights would be limited to the nursing home’s definition of grievance.

For example:

  • The resident right to voice grievances to other agencies or entities will only apply to what the nursing home has defined as a grievance. The right will not extend to what the nursing home defines as “general feedback”
  • The resident may face retaliation and discrimination for complaints the nursing home defines as “general feedback”. 

In addition, the proposal to remove the requirement of every nursing home having a ‘grievance official’ and the specific duties of the grievance official will cause more confusion for residents and will enable nursing homes to be vague in their responses.

If you or someone you know, had a concern in a nursing home but did not know who to contact at the nursing home, were ignored, or the concern was never addressed, speak up and tell CMS. Have you had a good experience with the current grievance process? Tell your story and your opinion on how this proposed change is harmful to residents.  

III. Behavioral Health

Current Federal Requirement

  • Was newly added in the 2016 final rule and the intent of the rule was to ensure that assessment and treatment of behavioral health issues are viewed with the same importance as the physical and receive the resources necessary to provide appropriate treatment.
  • Nursing homes must have sufficient staff who provide direct services to residents with the appropriate competencies and skills sets to provide nursing and related services to assure resident safety and attain or maintain the highest practicable physical, mental and psychosocial well-being.
  • The regulation also specifically addresses rehabilitative services for mental disorders and intellectual disabilities.

CMS Proposed Changes

  • Remove this language because it is duplicative and stated elsewhere in the regulations.

Why Proposed Changes are Harmful to Residents

CMS is proposing to remove the language because it is ‘duplicative’ and burdensome to nursing homes. We disagree. There is a great need to emphasize the need that nursing homes have staff who have the necessary competencies to provide behavioral health services to residents. Nursing homes are required to provide services to meet resident needs. However in practice, we see that nursing homes are failing in their responsibility to provide safe, proper, and effective behavioral health services to residents.

If you or someone you know had behavioral health needs (whether they stemmed from mental illness or dementia) that were not addressed, speak up and tell your story. CMS needs to hear from residents and their families why it is important that language specific to behavioral health remains in regulation.

IV. Pharmacy Services: Anti-Psychotic Drugs

Current Federal Requirement

  • Nursing homes are limited to prescribing anti-psychotic drugs PRN (as needed) to 14 days and cannot be renewed unless the attending physician or prescribing practitioner evaluates the resident for the appropriateness of that medication.

CMS Proposed Changes

  • Would remove the requirement that the attending physician or prescribing practitioner evaluate (i.e. personally examine) the resident when extending PRN orders for antipsychotic drugs past 14 days.

Why Proposed Changes are Harmful to Residents

Antipsychotics have been used in nursing homes as a means of chemical restraint and are overprescribed. We see the inappropriate use of antipsychotics when there is a shortage of staff or staff are not properly trained to work with residents. The FDA has a black box warning on antipsychotics that state these drugs are dangerous for and may kill older people with dementia. Prior to being prescribed such a potentially harmful medication, the resident should be examined by the prescriber, and have the right to know his/her options and refuse. Removing the requirement of in-person examination of a resident prior to extending the PRN use of these drugs is going to harm residents.

If you or someone you know, was given antipsychotics and suffered adverse effects (for example, multiple falls, drowsiness, inability to communicate) speak up and tell CMS! CMS needs to hear from you and why this proposed rule is harmful.

V. Food and Nutrition Services

Current Federal Requirement

  • If there is no full-time dietitian or other clinically qualified nutrition professional, the nursing home is required to designate a person to serve as director of food and nutrition services.
  • This person must be a certified dietary or food service manager, or have an associate’s or higher degree in food management or in hospitality from an accredited institution.

CMS Proposed Change

  • The individual designated as the director of food and nutrition services may have 2 or more years of experience in the position or has completed a minimum course of study in food safety.

Why the Proposed Change is Harmful to Residents

The proposed change would significantly relax the qualifications for the director of food and nutrition services. Proper nutrition and safe food practices are essential to ensuring nursing home residents improve upon and maintain their health. Undernutrition is a problem in nursing homes and contributes to inadequate healing of pressure sores, chronic disease, depression, and cognitive decline.

If you believe that requiring nursing home directors of food and nutrition services have proper certifications is important, tell CMS.

VI. Administration-Nursing Home Assessment

Current Federal Requirement

  • Existing regulations require each nursing home conduct and document a nursing home-wide assessment to determine what resources are necessary to care for its residents during both day-to-day operations and emergencies.
  • Requires the assessment be detailed: the nursing homes review: the number of residents, overall types of care and staff competencies required by the residents, resources (equipment, personnel), and a nursing home-based and community-based risk assessment.
  • Nursing homes must review and update this assessment as necessary and at least annually.

CMS Proposed Change

  • Reduce the frequency of reviewing and updating the assessment to at least every two years instead of annually.

Why the Proposed Change is Harmful to Residents

The purpose of the nursing home assessment is to figure out its needs and what resources are necessary to provide care and to plan accordingly. For example, these assessments are the foundation in determining staffing levels. How can a nursing home ensure there is “sufficient staff” to meet the needs of its residents if the nursing home is not conducting routine assessments of whether its staff have the proper and appropriate competencies to provide proper care?

If you believe that nursing homes should be required to conduct thorough and annual assessments to ensure they have appropriate staff to provide quality care to residents, tell CMS.

VII. Quality Assurance and Performance Improvement Program (QAPI)

Current Federal Requirement

  • Each nursing home is required to develop, implement, and maintain an effective, comprehensive, data-driven QAPI program that focuses on indicators of the outcomes of care and quality of life. 
  • Requires each nursing home’s QAPI Program follow specific guidelines:
    • Address all systems of care and management practices;
    • Include clinical care, quality of life, and resident choice; and
    • Utilize the best available evidence to define and measure indicators of quality that have been shown to be beneficial to residents.
  • Requires each nursing home establish and implement written policies and procedures for program feedback, data systems and monitoring. Specifically:
    • Obtain feedback and input from direct care staff, other staff, residents and representatives;
    • Implement a system that identifies, collects, and uses data and information from all departments; and
    • Implement adverse event monitoring.
  • Requires each nursing home take actions aimed at performance improvement and after implementation of those actions, measure its successes and track to ensure improvements are realized and sustained. Specifically:
    • How they will use a systemic approach to determine underlying causes of problems;
    • How they will develop corrective actions that will be designed to effect change at the systems level to prevent quality of care, quality of life, or safety problems; and
    • How they will monitor the effectiveness of its improvement activities to ensure improvements are sustained.

CMS Proposed Change

  • CMS is proposing to retain the mandate to accomplish certain things, such as performance improvement, but is eliminating the specific actions nursing homes are to take in order to implement an effective QAPI Program.
    • Everything that has been italicized in the above current rule is what CMS proposes to remove.

Why the Proposed Change is Harmful to Residents

The requirements CMS proposes to eliminate are not burdensome but necessary in order to protect the health and safety of every nursing home resident. Too many nursing homes have repeat health deficiencies and provide substandard care to its residents. Too many nursing homes ignore the concerns of its residents and do not include them in the solution. The provisions CMS proposes to remove are essentially best practices that nursing homes must follow.

If you believe that nursing homes should be held to a high standard in implementing and continuing an effective Quality Assurance and Performance Improvement Plan that involves residents and family, tells CMS! 

VIII. Infection Control

Current Federal Requirement

  • Nursing homes must designate at least one individual who would serve as the infection prevenionist (IP).
  • The IP is required to work at least part-time in his/her role at the nursing home.
  • The IP is responsible for the nursing home’s infection prevention and control program.

CMS Proposed Changes

  • Remove the requirement the IP be present at least ‘part-time’ in the nursing home and replace with ‘sufficient’ time.

Why these Proposed Changes are Harmful to Residents

Even though CMS acknowledges that infection is the leading cause of morbidity and mortality among nursing home residents, CMS is siding with the nursing home industry whose opinion is having an IP is burdensome. We strongly disagree with this proposed change. Having a fully developed and implemented infection prevention and control program is essential to ensuring the safety of residents in the nursing home. The IP is central to this. By removing the requirement of at least ‘part-time’ and replacing with ‘sufficient’, CMS is opening the door for facilities to choose costs saving measures over residents. We see this with the ‘sufficient’ standard for staffing in nursing homes.

If you or someone you know acquired an infection while in a nursing home, speak up. CMS needs to hear from current and former residents on why there needs to be robust infection control regulations.

IX. Compliance and Ethics Program

Current Federal Requirement

  • Every nursing home is required to have written standards, policies, and procedures that are reasonably capable of reducing the prospect of criminal, civil, and administrative violations and promote quality of care. (I.e. have a compliance and ethics program.) These  must contain the minimum:
    • A contact person to which individuals may report suspected violations;
    • Assignment of specific individuals within the high-level personnel of the operating organization with the overall responsibility to oversee compliance with the operating organization’s compliance and ethics program such as CEO or members of the board of directors;
    • Effectively train the entire staff on its compliance and ethics program standards, policies, and procedures.
  • The operating organization for each nursing home must review its compliance and ethics program annually.
  • For nursing home organizations that operate five or more facilities (ie a nursing home chain), their compliance and ethics program have the following:
    • Mandatory annual training program on the operating organization’s compliance and ethics program;
    • A designated compliance officer, for whom the operating organization’s compliance and ethics program is a major responsibility;
    • Designated compliance liaisons located at each of the operating organization’s nursing homes; and

 CMS Proposed Changes

  • Change the nursing home operating organization’s review of its compliance and ethics program to ‘periodic assessment’ instead of annually.
  • Remove the requirements for nursing home organizations with five or more facilities to have a compliance officer and designated compliance liaison.

Why these Proposed Changes are Harmful to Residents

CMS views the current, and essential, regulations as a ‘regulatory burden’ on nursing home operators. Compliance with the current laws is meant to ensure nursing homes do not cross the line and conduct illegal activities. It is not a ‘burden’ to require that nursing homes have thorough and proper structures in place for individuals to safely report suspected violations, that staff are trained, and that the compliance and ethics programs are reviewed on a yearly basis. Poor ethics and compliance programs directly impact resident care.

It is our position that CMS should maintain its current rules. There are too many media reports about nursing homes harming residents and closing due to illegal practices. Speak up and tell CMS to maintain the 2016 regulations.

X. Civil Money Penalties

Current Federal Requirement

  • When CMS issues a fine to a nursing home for violation of the federal nursing home regulations, the nursing home has 3 options: (1) informal dispute resolution; (2) formally appeal the fine; or (3) waive the right to appeal and receive a 35% reduction on the fine.

CMS Proposed Change

  • Create a constructive waiver of right to appeal and receive a 35% reduction on the fine.
    • Meaning nursing homes will no longer need to formally waive the right to appeal.

Why the Proposed Change is Harmful to Residents

Currently nursing homes, who are not going to appeal the fine, but want a reduction, have to submit in writing they waive their appeal rights. CMS proposes to remove the requirement that the nursing home submits this in writing. As a result, any nursing home that does not appeal the fine, will be given a 35% reduction on the fine.

Civil Money Penalties are meant to penalize nursing homes. Nursing homes already rarely face fines for violations of the federal nursing home regulations. Giving nursing homes who are facing fines a ‘free’ discount of 35% flies in the face of residents who are harmed.

If you think it is wrong that CMS is taking active measures to reduce the fines nursing homes face when they violate federal requirements, speak up and tell CMS!

As highlighted in the Long Term Care Community Coalition’s August 21 alert, WNY has over 12 poorly rated nursing homes. Every person in WNY deserves to receive quality of care when they enter into a nursing home, regardless of location, care needs, and income. In order to improve the quality of care in our nursing homes, WNY has to speak up. One way to do this is to submit comment to CMS and tell them not to rollback nursing home resident protections to the benefit of nursing home operators and at the expense of nursing home residents.

We are available to answer your questions pertaining to the proposed changes, how to submit public comment to CMS, and how your voice on these issues matters. Contact Supervising Attorney Lindsay Heckler at 853-3087 x 212. We also encourage you to view a webinar presented by the Long Term Care Community Coalition (of which we are a member) on the proposed rule changes. The webinar may be accessed: https://www.youtube.com/watch?v=YgVKMFtaKpg and slides:https://nursinghome411.org/ltccc-webinar-trump-administration-proposed-burden-reduction-nursing-homes/  Another source for information is the National Consumer Voice, their materials may be accessed at: https://theconsumervoice.org/news/detail/latest/materials-from-webinar-on-changes-to-the-nursing-home-regulations.

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